LIBRARY OF CONGRESS. 

— 

ilpqn &tjajrig§i T^tx* 

Shelf. 



UNITED STATES OF AMERICA. 



REVISED EDITION 

1880 



PACIFIC COAST 

COLLECTION LAWS 



A SUMMARY OF THE 



LAWS OF CALIFORNIA, NEVADA, OREGON, WASHINGTON 

TERRITORY, IDAHO, MONTANA, UTAH, WYOMING 

ARIZONA AND BRITISH COLUMBIA 

INCLUDING >^^^"0F C( 

INSOLVENCY LAWSlff ™£. 



ALSO 

THE JURISDICTION OF IX S. COURTS 



THE NAMES OF RELIABLE ATTORNEYS IN THE PRINCIPAL CITIES AND TOWNS 
THROUGHOUT THE PACIFIC COAST, AND A NOTARY PUBLIC 

FOR SAN FRANCISCO 



J. H. JELLETi; 

Attorney at Law §y£gr CP 




SAN FRANCISCO 

PETTIT & RUSS, BOOK AND JOB PRINTERS, 320-32G SANSOME STREET 

1880 



# 



<c 



6*0 



. 






Entered according to Act of Congress in the year 1880, by 

J. H. JELLETT, 

In the office of the Librarian of Congress at Washington, J). C. 



PREFACE 



"Pacific Coast Collection Laws." A revised edition for 1880 has 
been rendered necessary, owing to the many important changes that 
have been made in our statute laws since the last issue of the work, 
in 1878. 

The list of attorneys contained therein has been carefully revised. 

The following practicing attorneys kindly assisted in the under- 
taking: : 



'& 



Dolph, Bronaugh, Dolph & Simon Portland, Oregon. 

Bishop & Sabin ...•••• Eureka, Nevada. 

Marshall & Boyle Salt Lake City, Utah. 

Geo. T. Thompson Walla Walla, Washington Territory. 

W. E. Cullen Helena, Montana. 

C. N. Potter Cheyenne, Wyoming. 

Jonas W. Brown Idaho City, Idaho. 

M. W. T. Drake, of Drake & Jackson Victoria, B. C. 

Rush & Wells Prescott, A. T. 

J. H. JELLETT. 

San Francisco, June, 1880. 



CONTENTS. 



Part I. 

ATTORNEYS AND A NOTARY PUBLIC 
FOR SAN FRANCISCO. 

Part II. 

JURISDICTION OF U. S. COURTS. 

Page 

Chapter I. Courts and their Jurisdiction 19 

Part III. 
CALIFORNIA. 

Chapter I. Courts and their Jurisdiction 21 

II. Terms of Courts, When and Where Held 27 

III. Place of Trial of Civil Actions 28 

IV. Limitation of Civil Actions 31 

V. Parties to Suits — Commencement of Actions 35 

VI. Form of Civil Actions — Pleadings 38 

VII. Attachments 44 

VIII. Claim and Delivery of Personal Property 49 

IX. Arrest and Bail 51 

X. Injunctions 53 

XI. Judgments and Judgment Liens 53 

XII. Execution — Sale and Redemption 60 

XIII. Proceedings Supplementary to Execution 67 

XIV. Costs 69 

XV. Appeals in Civil Actions 70 



CONTENTS. 5 

Page 

XVI. New Trials 75 

XVII. Estates of Deceased Persons 76 

XVIII. Descents 83 

XIX. Liens of Mechanics and others upon Real Property 86 

XX. Liens for Salaries and Wages 89 

XXI. Arbitrations 91 

XXII. Homesteads 92 

XXIII. Corporations 93 

XXIV. Mode of taking Testimony of Witnesses 96 

XXV. Judicial Records, How Proved 98 

XXVI. Acknowledgments 99 

XXVII. Partnerships 102 

XXVIII. Married Women 106 

XXIX. Minors 107 

XXX. Stoppage in transit 108 

XXXI. Bills of Lading 109 

XXXII. Interest 110 

XXXIII. Common Carriers : Ill 

XXXIV. Mortgages of Personal Property 112 

XXXV. Pledge 114 

XXXVI. Guarantee and Suretyship 115 

XXXVII. Sale 117 

XXXVIII. Contracts 118 

XXXIX. Negotiable Instruments 120 

XL. Principal and Agent 127 

XLI. Fraudulent Instruments and Transfers 128 

XLII. Assignments for the benefit of Creditors 129 

XLIII. Commission Merchants, etc 130 

XLIV. Insolvency 131 

XLV. Legal Holidays 153 



Part IV. 
NEVADA. 



Chapter I. Courts — Jurisdiction and Terms of Courts 155 

II. Time allowed to answer — Service by Publication — Place of 

Trial 159 

III. Limitation of Actions 160 

IV. Attachments 162 

V. Arrest in Civil Actions 163 

VI. Judgments and Judgment Liens 164 

VII. Executions, Exemptions, Sale and Redemption 164 

VIII. Proceedings Supplementary to Execution 167 

IX. . Security for Costs 167 

X. Appeals , 168 



CONTENTS. 

Page 

XI. Estates of Deceased Persons 169 

XII. Homesteads 170 

XIII. Of Witnesses and Depositions 171 

XIV. Judicial Records, How Proved 174 

XV. Acknowledgments 175 

XYI. Affidavits, before whom to be taken 170 

XVII. Limited Partnerships 177 

XVIII. Married Women : 178 

XIX. Corporations 178 

XX. Chattel Mortgages 179 

XXI. Interest and Usury ] 79 

XXII. Promissory Notes and Bills of Exchange 180 

XXIII. Mortgages 181 

XXIV. Joint Debtors, Release of 181 

XXV. Insolvent Debtors 182 

XXVI. Travelers' License Law 184 

Part V. 
OREGON. 



Chapter I. Courts and their Jurisdiction 187 

II. Terms of Coiirts, When and Where Held 189 

III. Commencement of Suits 191 

IV. Place of Trial of Civil Actions 192 

V. Limitation of Actions 192 

VI. Attachments 194 

VII. Arrest in Civil Actions 195 

VIII. Judgments and Judgment Liens 190 

IX. Executions, Exemptions, Sale and Redemption 190 

X. Proceedings Supplementary to Execution 198 

XL Security for Costs 19S 

XII. Appeals 199 

XIII. Estates of Deceased Persons 200 

XIV. Descent of Real Property 201 

XV. Descent of Personal Property 202 

XVI. Homesteads and Dower 203 

XVII. Depositions , 204 

XVIII. Judicial Records 205 

XIX. Acknowledgments 200 

XX. Limited Partnerships 207 

XXI. Married Women 208 

XXII. Corporations 208 

XXIII. Chattel Mortgages 209 

XXIV. Interest and Usury 209 

XXV, Assignments for Benefit of Creditors 210 



CONTENTS. 7 

Part VI. 
IDAHO. 

Pagk 

Chapter I. Courts, Their Jurisdiction and Terms 215 

II. Commencement of Actions 217 

III. Place of Trial of Civil Actions 218 

IV. Limitations of Civil Actions 219 

V. Attachments . •. 220 

VI. Arrest in Civil Actions 222 

VII. Judgments and Judgment Liens 223 

VIII. Executions, Exemptions, Sale and Redemption 224 

IX. Proceedings Supplementary to Execution 226 

X. Security for Costs 227 

XL Appeals in General 227 

XII. Homesteads .229 

XIII. Estates of Deceased Persons 230 

XIV. Depositions 233 

XV. Judicial Records 234 

XVI. Acknowledgments 235 

XVII. Limited Partnerships 230 

XVIII. Married Women 237 

XIX. Corporations , 238 

XX. Chattel Mortgages 239 

XXI. Interest and Usury 239 

XXII. Affidavits 240 

XXIII. Sole Traders 241 

XXIV. Insolvent Debtors 243 



Part VII. 
WYOMING. 

Chapter 1. Courts and their Jurisdiction 247 

II. Terms of Courts, when and Where Held 248 

III. Commencement of Actions, Time to Answer, Place of Trial . . 249 

IV. Limitation of Actions 250 

V. Attachments -51 

VI. Arrest in Civil Actions '. 252 

VII. Judgment Liens 253 

VIII. Executions, Sale, Redemption and Exemptions 254 

IX. Proceedings in aid of Executions 255 

X. Security for Costs 250 

XL Appeals 256 

XII. Estates of Deceased Persons . . • 257 



© CONTENTS. 

Page 

XIII. Descents and Distribution of Property 257 

XIV. Depositions 261 

XV. Judicial Records 262 

XVI. Acknowledgments 262 

XVII. Limited Partnership 264 

XVI II. Married Women 265 

XIX. Chattel Mortgages . .'. 265 

XX. Interest and Usury 266 

XXI. Assignments 267 

Part VIII. 
MONTANA. 

Chapter I. Courts, their Jurisdiction and Terms 260 

II. Time allowed Defendant to answer — Place of Trial of Civil 

Actions 271 

III. Limitation of Actions 272 

IV. Attachments — Arrests in Civil Cases 273 

V. Judgment Liens — Executions, Exemptions, Sale and Redemp- 

tion 274 

VI. Proceedings Supplementary to Executions 276 

VII. Security for Costs — Appeals 27(> 

VIII. Estates of Deceased Persons . . 277 

IX. Depositions — Judicial Records — Acknowledgments 27S 

X. Limited Partnerships 270 

XL Married Women 280 

XII. Corporations — Chattel Mortgages — Interest 281 

XIII. Insolvency 282 

XIV. Commercial Travelers' License 282 

Part IX. 
ARIZONA. 

Chapter I. Courts and their Jurisdiction 283 

II. Terms of Courts, When and Where Held 285 

III. Commencement of Suits 286 

IV. Place of Trial of Civil Actions 287 

V. Limitation of Actions 280 

VI. Attachments 200 

VII. Arrest in Civil Actions 202 

VHI. Judgment and Judgment Liens 203 

IX. Executions, Exemptions, Sale and Redemption 203 

X. Proceedings Supplementary to Execution 205 



CONTENTS. 9 

Paok 

XL Estates of Deceased Persons 295 

XII. Affidavits and Depositions 297 

XIII. Acknowledgments 298 

XIV. Married Women 299 

XV. Chattel Mortgages 300 

XVI. Interest : 301 

XVII. Bills of Exchange 232 

XVIII. Insolvency 233 

Part X. 
UTAH. 

( 'ii.u-TER I. The Courts and their Jurisdiction 305 

II. The Terms of Courts, and Places of Holding same 300 

III. Commencement of Suits, and Time allowed Defendants to 

Plead , 307 

IV. Limitations of Actions 307 

V. Attachments 308 

VI. Arrests in Civil Actions 309 

VII. Judgment and Judgment Liens 310 

VIII. Executions, Exemptions, Sales and Redemption ■ 310 

IX. Proceedings in Aid of Executions 313 

X. Security for Costs 314 

XL Appeals 315 

XII. Estates of Deceased Persons 317 

XIII. Homesteads 318 

XIV. Depositions 319 

XV. Judicial Records, How Proven 321 

XVI. Acknowledgments 322 

XVII. Partnerships : 323 

XVIII. Married Women 324 

XIX. Corporations 324 

XX. Chattel Mortgages 325 

XXI. Interest and Usury 326 

XXII. Insolvency 320 

Part XL 
WASHINGTON TERPJTOKY. 



Chapter I. Courts and their Jurisdiction 327 

II. Terms of Courts, When and Where Held 329 

III. Commencement of Suits, Time Allowed to Answer 330 



10 CONTENTS. 

Page 

IV. Place of Trial of Civil Actions 331 

V. Limitation of Actions 332 

VI. Attachments 333 

VII. Arrest in Civil Actions 335 

VIII. Judgments and Judgment Liens 337 

IX. Executions, Exemptions, Sales and Redemption 338 

X. Proceedings Supplementary to Execution • 341 

XI. Security for Costs 342 

XII. Appeals and Writs of Error 342 

XIII. Estates of Deceased Persons 343 

XIV. Homesteads 344 

XV. Depositions 344 

XVI. Judicial Record of other States, How Proved 346 

XVII. Acknowledgments 347 

XVIII. Limited Partnerships 348 

XIX. Married Women ." 349 

XX. Corporations 350 

XXI. Chattel Mortgages 350 

XXII. Interest 351 

XXIII. Insolvency 352 

Part XII. 
BRITISH COLUMBIA. 



Chapter I. Courts, their Jurisdiction and Terms 357 

II. Commencement of Suits 35S 

III. Limitation of Actions 360 

IV. Attachments — Arrest in Civil Actions 360 

V. Judgments and Judgment Liens 361 

VI. Executions, Exemptions, Redemption, Sale 361 

VII. Security for Costs 362 

VIII. Appeals 362 

IX. Estates of Deceased Persons 363 

X. Homesteads 364 

XL Depositions 364 

XII. Judicial Records — Acknowledgments 365 

XIII. Limited Partnerships 365 

XIV. Married Women 366 

XV. Mortgages 366 

XVI. Interest and Usury 367 

XVII. Land Laws 367 

XVIII. Municipality Laws 36S 

XIX. Ships and Shipping 368 

XX. Insolvency 368 



PART I. 



ATTORNEYS AND A NOTARY PUBLIC 
FOR SAN FRANCISCO. 



THE FOLLOWING ARE RECOMMENDED AS RELIABLE. 



CALIFORNIA. 



County. 


Residence. 


Name. 


Alameda .... 


Oakland 

Livermore . . . 
Pleasanton . . 


J. C. Plunkett. 
E. Aubury. 
J. R. Palmer. 

(Also Notary Public.) 


Amador 


Jackson 


J. M. Porter. 




Sutter Creek. 


I. N. Randolph. 


Butte 


Oroville 


'John C. Gray. 




Chieo 


A. J. Gilford. 


Calaveras. . . . 


Mokel'ne Hill 


0. F. Tibbits. 




Vallecito .... 


B. H. Lewis. 


Colusa 


Colusa 


H. M. Alberv. 


Contra Costa . 


Martinez .... 


Mills & Jones. 



ATTORNEYS. 

CALIFORNIA— Continued. 



[Part 1. 



County. 

Contra Costa 
Del Norte . . 
El Dorado . . 

Fresno 

Humboldt . . 

Inyo 

Kern 

Lake 

Lassen 

Los Angeles 

Marin 

Mariposa . . . 
Mendocino. . 

Merced 

Modoc 

Mono 



Residence. 



Antioch ..... James T. Cruikshank. 

Crescent City.iW. A. Hamilton. 

Placerville.. . C. F. Irwin. 

Fresno H. S. Dixon. 

Ferndale P. F. Hart. 

Eureka John A. Watson. 

(Real Estate and Collector.) 

Independence Reddy & Conklin. 

Bakersfield. . .J. W. Freeman. 

Lakeport .... Woods Crawford. 

Susanville . . . Goodwin & Barstow. 

Los Angeles . Henry T. Hazard. 
Anaheim .... Robert W. Scott. 



San Rafael 
Mariposa . 
Ukiah. . . . 
Merced. . . 
Alturas. . . 



Bridgeport 



. . Hepburn Wilkins. 
. . L. F. Jones. 
. . T. L. Carothers. 
. . Samuel C. Bates. 
. . F. W. Ewing. 



Wm. O. Parker. 



Bodie 0. F. Hakes. 



Part 1.] 



ATTORNEYS. 



13 



CALIFORNIA— Continued. 



County. 


Residence. 


Name. 


Monterey. . . . 


Salinas 


N. A. Dorn. 


Napa 


Napa 


F. E. Johnson. 


Napa 


St. Helena . . 


W. A. C. Smith. 

(Also Notary Public.) 


Nevada 


Nevada City. 
Truckee 


Jno. I. Caldwell. 
John Keiser. 

(Justice of Peace.) 


Placer 


Ophir 

(Near Auburn.) 


James Moore. 

(Also Notary Public.) 


Plumas 


Quincy 

La Porte .... 


W. W. Kellogg. 
John W. Turner. 


Sacramento . . 


Sacramento . . 

(601 I street.) 


J. C. Tubbs. 


San Benito . . 


Hollister 


W. G. Lee. 


San Bern'dino 


San Bern'dino 


John Brown, Jr. 


San Diego. . . 


San Diego. . . 


Levi Chase. 


San Joaquin . 


Stockton .... 


J. M. Hogan. 


San Luis Obis- 
po 


San Luis Obis- 
P° 


R. M. Preston. 

(Court Commissioner.) 


San Mateo. . . 


Redwood City 


Fox & Boss. 


Santa Barbara 


Santa Barbara 


Richards & Boyce. 


Santa Clara. . 


San Jose 


S. F. Leib. 



14 



ATTORNEYS. 



[Part 1. 



CALIFORNIA— Continued. 



Residence. 



Name, 



Santa Cruz,. .! Santa "Cruz. . E. L. Williams. 



Shasta 
Sierra . 



; Watson ville . 
Shasta 



Downie ville . 
Sierra Valley 



Siskiyou Yreka. . 

Etna.-. . 

Solano Suisun . 



Sonoma Santa Rosa 

Healdsburg 

Stanislaus . . J Modesto. . 

Sutter Yuba City 

Tehama j Red Bluff 

Tulare i Visalia . . . 

Tuolumne. . JSonora . . . 

Ventura S'n Buenaven- 
tura 

Yolo Woodland . . . 

Yuba Marvsville . . . 



Kittridge k Halstead. 

Clay W. Taylor. 

S. B. Davidson. 
I George Wood. 

H. B. Gillis. 
J. S. Beard. 

(And Notary Public ) 

Joseph McKenna. 

Hoag & Whipple. 
J. W. Rose. 

Schell & Treat. 

Stabler & Bayne. 

W. Henry Jones. 

Tipton Lindsay. 

C. L. Street. 

• Bledsoe & Petinos. 

C. S. Frost. 
E. A. Davis. 



Part 1. 



ATTORNEYS. 

NEVADA. 



15 



County 



Residence. 



Name. 



Douglas Genoa D. W. Virgin. 

Elko Elko |Keeney & Bigelow. 



Esmeralda. . . 
Eureka 



Aurora |A. L. Greeley. 

Eureka ! Bishop & Sabin 



Humboldt . . . Winnemucca . C. S. Osborne. 

(Justice of the Peace.) 

Austin Henry Mayenbaum. 



Lander . . . 

Lincoln Pioche J. M. Hartford. 

Lyon Dayton Geo. W. Keith. 

Nye Belmont Alex. Campbell & Soi 

Ormsby Carson City. .A. C. Ellis. 

Storey ! Virginia City. W. E. F. Deal. 

Washoe iReno C. W. Jones. 

(Collector.) 



OBEGON 



RESIDENCE. 



Name. 



Baker Baker City. . . L. 0. Sterns. 

(Also Notary Public.) 

Benton jCorvallis IF. A. Chenoweth. 

Coos iEmpire City .Henry Sengstacken . . . 

(Notary Public and Collector. ) 



16 



ATTORNEYS. 

OREGON— Continued. 



[Part 1. 



County. 


Residence. 


Name. 


Douglas 


Roseburg. . . . 


E. G. Hursh. 


Jackson 


Jacksonville . . 


E. H. Autenreith. 


Lake 


Lake View. . . 


C. A. Cogswell. 


Lane 


Eugene City. 


George B. Dorris. 


Linn 


Albany 


Flinn & Chamberlain. 


Marion 


Salem 


Knight & Lord. 


Multnomah . . 


Portland 


Dolph, Bronaugh, 

Dolph & Simon. 


Polk 


Dallas 


J. L. Collins. 


Umatilla .... 


Pendleton . . . 


Turner, Bailey & 

Conley. 


Union 


La Grande . . . 


Baker & Eakin. 


Wasco 


The Dalles... 


J. B. Condon. 


Washington . . 


Hillsboro .... 


Thos. H. Tongue. 


Yamhill 


Lafayette .... 


H. Hurley. 



UTAH TERRITORY. 



Residence. 



Salt Lake . . J Salt Lake City 



Name. 



Marshall & Royle. 



Part 1.] ATTORNEYS. 17 

WASHINGTON TERRITORY. 



County. 


Residence. 


Name. 


Clarke 


Vancouver . . . 


N. H. Blooinfield. 


Columbia. . . . 


Dayton.. 


Sturdevant & Rauch. 


Jefferson 


P't Townsend 


J. A. Kuhn. 


King 

Pierce 


Seattle 

New Tacoma. 


D. T. Wheeler. 

(Collector.) 

C. D. Young. 


Thurston 


Olympia 


John P. Judson. 


Walla Walla. 


Walla Walla. 


George T. Thompson. 



MONTANA TERRITORY. 



County. 



Residence. 



Lewis &Clarke Helena 

! 

Madison I Virginia City 



Name. 



W. E. Cullen. 
Theo. Muffly. 



IDAHO TERRITORY. 



County. 



Ada 

Boise 

Lemhi 

Nez Perces . . 



Residence. 



Boise City. . . 
Idaho City. . . 

Challis 

Lewiston 



Name. 



Huston & Gray. 
Jonas W. Brown. 
Johnson & Onderdonk. 
Jasper Band. 



18 



ATTORNEYS. 



[Part 1. 



ARIZONA TERRITORY. 



COUNTY. 


Residence. 


Name. 


Pirna 


Tucson ...... 

Tombstone . . . 


Farley & Pomroy. 
W. J. Hunsaker. 


Yavapai 


Prescott 


Rush & Wells. 


Yuma 


Yuma 


H. X. Alexander. 



WYOMING TERRITORY. 



County. 



Name. 



Laramie Cheyenne. . . . C. N. Potter. 



BRITISH COLUMBIA. 


District. 


Residence. 


Name. 


Victoria 


Victoria Drake & Jackson. 



EDWARD CHATTIN 

(Of King & Ciiattin) 

442 California Street, . . San Francisco, Cal. 

NOTARY PUBLIC 



And Commissioner of Deeds for all the 
States and Territories. 



PART II. 



JURISDICTION OF UNITED STATES COURTS. 



CHAPTER I. 

COURTS AND THEIR JURISDICTION. 

The Circuit Courts of the United States have jurisdiction — 

Of all suits of a civil nature at common law or in equity, where 
the matter in dispute, exclusive of costs, exceeds the sum or value 
of five hundred dollars, and an alien is a party, or the suit is between 
a citizen of the State where it is brought and a citizen of another 
State : Provided, that no Circuit Court shall have cognizance of any 
suit to recover the contents of any promissory note or other chose 
in action in favor of an assignee, unless a suit might have been 
prosecuted in such Court to recover the said contents if no assign- 
ment had been made, except in case of foreign bills of exchange. 

In all suits at law, or in equity, arising under the patent or copy- 
right laws of the United States. 

Of all suits by or against any banking association established in 
the district for which the Court is held, under any law providing 
for national banking associations. 

Any suit commenced in a State Court, when the amount in dis- 
pute, exclusive of costs, exceeds the sum or value of five hundred 



20 California. [Part 2. 

dollars, to be made to appear to the satisfaction of said Court, may 
be removed, for trial, into the Circuit Court for the district where 
such suit is pending, next to be held after the filing of the petition 
for such removal, in the cases following : 

1. When the suit is against an alien, or is by a citizen of the 
State wherein it is brought, and against a citizen of another State, 
on the petition of the defendant. 

2. "When the suit is against an alien and a citizen of the State 
where it is brought, or is by a citizen of such State against a citizen 
of the same and the citizen of another State, it may be so removed, 
as against said alien or citizen of another State, upon the petition 
of such defendant. But such removal shall not take away or preju- 
dice the right of the plaintiff to proceed at the same time with the 
suit in the State Court, as against the other defendants. 

3. When a suit is between a citizen of the State in which it is 
brought and a citizen of another State, it may be removed on the 
petition of the latter, whether he be plaintiff or defendant, if he 
makes and files in said State Court an affidavit, stating that he has 
reason to believe, and does believe, that, from prejudice or local in- 
fluence, he will not be able to obtain justice in such State Court. 

The District Courts of the United States have jurisdiction — 

In all suits by or against any association established under any 
law providing for national banking associations, within the district 
for which the Court is held. 

It also has jurisdiction of suits for the collection of the Internal 
Revenue, and is the Court of Admiralty. 



FART III. 



STATE OF CALIFORNIA. 



CHAPTEE I. 

COURTS AND THEIR JURISDICTION. 

The following are the Courts of justice of this State : 

1. The Court of Impeachment ; 

2. The Supreme Court ; 

3. The Superior Courts; 

4. The Justices' Courts ; 

5. The Police Courts, and such other inferior Courts as the Legis- 
lature may establish in any incorporated city or town, or city and 
county. 

The three first-named Courts are Courts of record. 

Court of Impeachment. 

The Court of Impeachment is the Senate ; when sitting as such 
Court the Senators shall be upon oath ; and at least two-thirds of 
the members elected shall be necessary to constitute a quorum. 

The Court has jurisdiction to try impeachments, when presented 
by the Assembly, of the Governor, Lieutenant-Governor, Secretary 
of State, Controller, Treasurer, Attorney-General, Surveyor-General, 



90 



CALIFORNIA. [Part 3. 



Chief Justice of the Supreme Court, Associate Justices of the Su- 
preme Court, and Judges of the Superior Courts, for any misde- 
meanor in office. 

The officers of the Senate are the officers of the Court. 

Supreme Court. 

The Supreme Court shall consist of a Chief Justice and six Asso- 
ciate Justices. 

There 'shall be two departments of the Supreme Court, denomi- 
nated respectively Department One and Department Two. The 
Chief Justice shall assign three of the Associate Justices to each 
department, and such assignment may be changed by him from time 
to time ; provided, that the Associate Justices shall be competent to 
sit in either department, and may interchange "with one another by 
agreement among themselves, or if no such agreement be made, as 
ordered by the Chief Justice. The Chief Justice may sit in either 
department, and shall preside when so sitting ; but the Justices as- 
signed to each department shall select one of their number as pre- 
siding Justice. Each of the departments shall have the power to 
hear and determine causes and all questions arising therein, subject 
to the provisions in relation to the Court in bank. The presence 
of three Justices shall be necessary to transact any business in either 
of the departments, except such as may be done at chambers ; but 
one or more of the Justices may adjourn from time to time with the 
same effect as if all were present, and the concurrence of three Jus- 
tices shall be necessary to pronounce a judgment ; provided, that if 
three do not concur, the cause may be reheard in the same depart- 
ment, or transmitted to the other department, or to the Court in 
bank. 

The Chief Justice shall apportion the business to the departments, 
and may, in his discretion, order any cause pending before the Court 
to be heard and decided by the Court in bank. The order may be 
made before or after judgment pronounced by a department ; but 
when a cause has been allotted to one of the departments, and a 
judgment pronounced therein, the order must be made within thirty 
days after such judgment, and concurred in by two Associate Jus- 
tices ; and if so made, it shall have the effect to vacate and set aside 
the judgment. Any four Justices may, either before or after judg- 



Chap. 1.] CALIFORNIA. 23 

ment by a department, order a cause to be heard in bank. If the 
order be not made within the time above limited, the judgment shall 
be final ; provided, that no judgment by a department shall become 
final until the expiration of the period of thirty clays aforesaid, un- 
less approved by the Chief Justice in writing, with the concurrence 
of two Associate Justices. 

The Chief Justice or any four Justices may convene the Court in 
bank at any time, and the Chief Justice shall be the presiding Justice 
of the Court when so convened. The presence of four Justices 
shall be necessary to transact any business, and the concurrence of 
four Justices present at the argument shall be necessary to pro- 
nounce a judgment in the Court in bank ; provided, that if four Jus- 
tices so present do not concur in a judgment, then all the Justices 
qualified to sit in the cause shall hear the argument, but to render a 
judgment a concurrence of four Justices shall be necessary ; and 
every judgment of the Court in bank shall be final, except in cases 
in which no previous judgment has been rendered in one of the de- 
partments, and in such cases the judgment of the Court in bank shall 
be final, unless within thirty days after such judgment an order be 
made in writing, signed by five Justices, granting a rehearing. 

In case of the absence of the Chief Justice from the place at 
which the Court in bank is held, or his inability to act, the Associate 
Justices shall select one of their own number to perform the duties 
and exercise the powers of the Chief Justice during such absence or 
inability to act. 

The Supreme Court of the State of California has original and 
appellate jurisdiction. Its original jurisdiction extends — 

To the issuance of writs of mandamus, certiorari, prohibition, and 
habeas corpus, and all other writs necessary or proper to the com- 
plete exercise of its appellate jurisdiction. 

It has appellate jurisdiction — 

1. In all cases in equity except such as arise in Justices' Courts. 

2. In all cases at law which involve the title or possession of real 
estate on the legality of any tax, impost, assessment, toll, or munici- 
pal fine, or in which the demand, exclusive of interest or the value 
of the property in controversy, amounts to three hundred dollars. 

3. In all cases of forcible entry and detainer, proceedings in insol- 



24 California. [Part 3. 

vency, actions to prevent or abate a nuisance, and in all such pro- 
bate matters as may be provided by law. 

4. In all special proceedings. 

5. In all criminal cases prosecuted by indictment, or information, 
in a Court of record, on questions of law alone. 

SUPERIOR COURTS. 

There shall be in each of the organized counties, or cities and 
counties of the State, a Superior Court, for each of which one Judge, 
and for some of which two or more Judges ; provided, that in and 
for the counties of Yuba and Sutter combined, only one Superior 
Judge shall be elected, who shall hold the Superior Courts of both 
said counties, and in accordance with such rules for the dispatch of 
business in both said counties as he may adopt. 

In each of the counties of Alameda, Los Angeles, Sacramento, 
San Joaquin, Santa Clara and Sonoma, there shall be elected two 
Judges of the Superior Court ; and in each of said counties, and in 
any county, or city and county, other than the City and County of 
San Francisco, in which there shall be more than one Judge of the 
Superior Court, the Judges of such Court may hold as many sessions of 
said Court at the said time as there are Judges thereof, and shall ap- 
portion the business among themselves as equally as may be. 

In the City and County of San Francisco there shall be elected 
twelve Judges of the Superior Court, any one or more of whom may 
hold Court ; and there may be as many sessions of said Court at the 
same time as there are Judges thereof. The said Judges shall choose 
from their own number a presiding Judge, who may at any time be re- 
moved and another chosen in his place by a vote of any seven of them. 
The presiding Judge shall distribute the business of the Court among 
the Judges thereof, and prescribe the order of business. 

A Superior Court Judge has been appointed to reside and hold 
Court at Bodie, Mono County. 

The jurisdiction of the Superior Courts is of two kinds : 

1. Original ; and 

2. Appellate. 

The Superior Courts shall have original jurisdiction — 
1. In all cases of equity ; 



Chap. 1.] CALIFORNIA. 25 

2. In all civil actions in which the subject of litigation is not ca- 
pable of pecuniary estimation. 

3. In all cases at law which involve the title or possession of real 
property, or the legality of any tax, impost, assessment, toll, or mu- 
nicipal hue, and in all other cases in which the demand, exclusive of 
interest or the value of the property in controversy amounts to three 
hundred dollars. 

4. Of actions of forcible entry and detainer, of proceedings in in sol- 
vency, of actions to prevent or abate a nuisance, of all matters of pro- 
bate, of divorce and for annulment of marriage, and of all such 
special cases and proceedings as are not otherwise provided for. 

5. In all criminal cases amounting to felony, and cases of misde- 
meanor not otherwise provided for. Said Courts shall have the 
power of naturalization, and to issue .papers therefor. Said Courts 
and their Judges, or any of them, shall have power .to issue writs of 
mandamus, certiorari, prohibition, quo warranto, and of habeas cor- 
pus, on petition by or on behalf of any person in actual custody, in 
their respective counties. Injunctions and writs of prohibition may 
be issued and served on legal holidays and non-judicial days. 

The Superior Courts shall have appellate jurisdiction in such cases 
arising in Justices' and other inferior Courts in their respective 
counties as may be prescribed by law. 

Justices' Courts. 

The Justices' Courts shall have civil jurisdiction — 

1. In actions arising on contract for the recovery of money only 
if the sum claimed, exclusive of interest, does not amount to three 
hundred dollars ; 

2. In actions for damages for injury to the person or for taking, 
detaining, or injuring personal property, or for injury to real prop- 
erty where no issue is raised by the verified answer of the defendant 
involving the title to or possession of the same, if the damage claimed 
do not amount to three hundred dollars ; 

3. In actions to recover the possession of personal property, if 
the value of such property does not amount to three hundred dol- 
lars ; 

4. In actions for a fine, penalty or forfeiture, not amounting to 



26 California. [Part 3. 

three hundred dollars, given by statute, or the ordinance of an in- 
corporated city and county, city, or town, where no issue is raised 
by the answer involving the legality of any tax, impost, assessment, 
toll, or municipal fine ; 

5. In actions upon bonds or undertakings conditioned for the pay- 
ment of money, if the sum claimed does not amount to three hun- 
dred dollars, though the penalty may exceed that sum ; 

6. To take and enter judgment for the recovery of money on the 
confession of a defendant, when the amount confessed, exclusive of 
interest, does not amount to three hundred dollars. 

The Justices' Courts shall have concurrent jurisdiction with the 
Superior Courts within their respective townships : 

1. In actions of forcible entry and detainer, where the rental value 
of the property entered upon or unlawfully detained does not exceed 
twenty-five dollars per month, and the whole amount of damages 
claimed does not exceed two hundred dollars ; 

2. In actions to enforce and foreclose liens on personal property, 
where neither the amount of the liens nor the value of the property 
amounts to three hundred dollars. 

Except as heretofore provided, the jurisdiction of the Justices' 
Courts shall not, in any case, trench upon the jurisdiction of the 
several Courts of record of the State, nor extend to any action or 
proceeding against ships, vessels, or boats, for the recovery of sea- 
men's wages for a voyage performed in whole or in part without the 
waters of this State. 

The Justices' Courts shall have jurisdiction of the following public 
offenses committed within the respective counties in which such 
Courts are established : 

1. Petit larceny ; 

2. Assault or battery not charged to have been committed upon a 
public officer in the discharge of his duties, or to have been com- 
mitted with such intent as to render the offense a felony ; 

3. Breaches of the peace, riots, routs, affrays, committing a willful 
injury to property, and all misdemeanors punishable by fine not ex- 
ceeding five hundred dollars, or imprisonment not exceeding six 
months, or by both such fine and imprisonment. 



Chap. 2.] CALIFORNIA. 27 

CHAPTER II. 

TERMS OF COURTS, WHEN AND WHERE HELD. 

Supreme Court. 

The Supreme Court shall always be open for the transaction of 
business. 

It shall hold regular sessions for the hearing of causes, either in 
bank or in one or both of its departments, at the Capital of the 
State, commencing on the first Mondays of May and the second 
Mondays of November. At the City and County of San Francisco 
commencing on the second Mondays of January and third Mondays 
of July ; and at the City of Los Angeles commencing on the first 
Mondays of April and the second Mondays of October, and special 
sessions at either of the above-named places at such other times as 
may be prescribed by the Judges thereof. 

Superior Courts. 

The Superior Courts shall be always open (legal holidays and 
non-judicial days excepted), and they shall hold their sessions at the 
county seats of the several counties, or cities and counties, respect- 
ively. They shall hold regular sessions, commencing on the first 
Mondays of January, April, July and October, and special sessions 
at such other times as may be prescribed by the Judge or Judges 
thereof ; provided, that in the City and County of San Francisco the 
presiding Judge shall prescribe the times of holding such special 
sessions. 

Justices' Courts. 

These Courts may be held at any place selected by the Justice 
holding the same, in the township or city for which he is elected, 
and they are always open for the transaction of business. 

The Circuit Court of the United States — District of 
California. 

The regular term shall be held at San Francisco, as follows: 



28 California. [Part 3. 

On the first Monday in February, second Monday in July, and 
fourth Monday in November of each year. 

The Circuit Judge may appoint special sessions of the Circuit 
Court, to be held at the place where the regular session is held. 

The District Court of the United States — District of 
California. 

The regular terms shall be held at San Francisco, as follows : 
On the first Monday in April, on the second Monday in August, 
and on the first Monday in December. 

Whenever the Judge fails to hold any regular term thereof, it 
shall be his duty, if it appears that the business of the Court re- 
quires it, to hold an intermediate term. 



CHAPTER III. 

PLACE OF TRIAL OF CIVIL ACTIONS. 

The process of the Superior Courts shall extend to all parts of the 
State; provided, that all actions for the recovery of the possession of, 
quieting the title to, or for the enforcement of liens upon real es- 
tate, shall be commenced in the county in which the real estate, or 
any part thereof affected by such action or actions, is situated. 

Actions for the following causes must be tried in the county in 
which the subject of the action, or some part thereof, is situated : 

1. For the recovery of real property, or of an estate or interest 
therein, or for the determination, in any form, of such right or 
interest, and for injuries to real property. 

2. For the partition of real property. 

3. For the foreclosure of all liens and mortgages on real property. 
Where the real property is situated partly in one county and part- 



Chap. 3.] CALIFORNIA. 29 

ly in another, the plaintiff may select either of the counties, and the 
county so selected is the proper county for the trial of such action. 

Actions for the following causes must be tried in the county where 
the cause or some part thereof arose : 

1. For the recovery of a penalty or forfeiture imposed by stat- 
ute, except that when it is imposed for an offense committed on a 
lake, river, or other stream of water situated in two or more coun- 
ties, the action may be brought in any county bordering on such 
lake, river, or stream, and opposite to the place where the offense 
was committed. 

2. Against a public officer or person especially appointed to exe- 
cute his duties, for an act done by him in virtue of his office, or 
against a person who, by his command, or in his aid, does any thing- 
touching the duties of such officer. 

Actions against counties may be commenced and. trie<;l in any 
county in the judicial district in which such county is situated, un- 
less such actions are between counties, in which case they may be 
commenced and tried in any county not a party thereto. 

All other actions must be tried in the county in which the defend- 
ants, or some of them, reside at the commencement of the action ; 
or if none of the defendants reside in the State, or if residing in this 
State, the county in which they reside is unknown to the plaintiff, 
the same may be tried in any county which the plaintiff may desig- 
nate in his complaint ; and if the defendant is about to depart from 
the State, such action may be tried in any county where either of 
the parties reside, or where service is had. 

If the county in which the action is commenced is not the proper 
county for the trial thereof, the action may, notwithstanding, be 
tried therein, unless the defendant, at the time he appears and an- 
swers or demurs, files an affidavit of merits, and demands in writing 
that the trial be had in the proper county. 

The place of trial may be changed in the following cases : 

1. When the county designated in the complaint is not the proper 
county. 

2. "When there is reason to believe that an impartial trial cannot 
be had therein. 



30 California. [Part 3. 

3. When 'the convenience of witnesses and the ends of justice 
would be promoted by the change. 

4. When from any cause the Judge is disqualified for acting. 

Place of Trial of Actions in Justices' Courts. 

1. If there be no Justices' Courts for the township or city in which 
the defendant resides : in any city or township of the county in 
which he resides. 

2. When two or more persons are jointly, or jointly and severally, 
bound in any debt or contract, or otherwise jointly liable in the same 
action, and reside in different townships or different cities of the 
same county, or in different counties : in the township or city in 
which any of the persons liable may reside. 

3. In case of injury to the person or property : in the township 
or city where the injury was committed, or where the defendant re- 
sides. 

4. If for the recovery of personal property, or the value thereof, 
or damages for taking or detaining the same : in the township or 
city in which the property may be found, or in which the property 
was taken, or in which the defendant resides. 

5. When the defendant is a non-resident of the county : in any 
township or city wherein he may be found. 

6. When the defendant is a non-resident of the State : in any 
township or city in the State. 

7. When a person has contracted to perform an obligation at a 
particular place, and resides in another county, township or city : 
in the township or city in which such obligation is to be performed, 
or in- which he resides ; and the township or city in which the obli- 
gation is incurred shall be deemed to be the township or city in 
which it is to be performed, unless there is a special contract to the 
contrary. 

8. When the parties voluntarily appear and plead without sum- 
mons : in any township or city in the State. 

9. In all other cases : in the township or city in which the de- 
fendant resides. 

The place of trial may be changed in the following cases : 

1. When it appears to the satisfaction of the Justice before whom 



Chap. 4.] CALIFORNIA. 31 

the action is pending, by affidavit of either party, that such Justice 
is a material witness for either party. 

2. When either party makes and files an affidavit that he be- 
lieves that he cannot have a fair and impartial trial before such Jus- 
tice, by reason of the interest, prejudice or bias of the Justice. 

3. When a jury has been demanded, and either party makes and 
files an affidavit that he cannot have a fair and impartial trial on ac- 
count of the bias or prejudice of the citizens of the township or city 
against him. 

4. When from any cause the Justice is disqualified from acting. 

5. When the Justice is sick or unable to act. 



CHAPTER IV. 

LIMITATION OF CIVIL ACTIONS. 

The periods prescribed for the commencement of civil actions are 
as follows : 

Within Five Years. 

1. An action upon a judgment or decree of any Court of the 
United States or of any State within the United States. 

2. An action for mesne profits of real property. 

Within Four Years. 

An action upon any contract, obligation or liability founded upon 
an instrument in writing executed in this State (promissory notes 
included). 

Within Three Years. 

1. An action upon a liability created by statute, other than a 
penalty or forfeiture. 

2. An action for trespass upon real property. 



32 California. [Part 3. 

3. Aii action for taking, detaining, or injuring any goods or 
chattels, including actions for the specific recovery of personal 
property. 

An action for relief on the ground of fraud or mistake. In this 
case the time begins to run from the discovery, by the aggrieved 
party, of the facts constituting the fraud or mistake. 

Within Two Years. 

1. An action upon a contract, obligation, or liability, not founded 
upon an instrument of writing, made within or out of this State 
(accounts included). 

2. An action founded upon an instrument of writing executed 
out of this State (promissory notes included). 

3. An action against a Sheriff, Coroner, or Constable, upon a 
liability incurred by the doing of an act in his official capacity and 
in virtue of his office, or by the omission of an official duty, including 
the non-payment of money collected upon an execution — except for 
an escape. 

4. An action to recover damages for the death of one caused by the 
wrongful act or neglect of another. 

Within One Year. 

1. An action upon a statute for a penalty or forfeiture, where 
the action is given to an individual, or to an individual and the 
State, except where the statute imposing it prescribes a different 
limitation. 

2. An action for libel, slander, assault, battery, false imprison- 
ment, or seduction. 

3. An action against a Sheriff or other officer for the escape of a 
prisoner arrested or imprisoned on civil process. 

4. An action against a municipal corporation for damages for 
injuries to property caused by a mob or riot. 

Within Six Months. 

An action against an officer, or officer de facto — 

1. To recover any goods, wares, merchandise, or other property, 
seized by such officer in his official capacity as Tax Collector, or to re- 
cover the price or value of any goods, wares, merchandise, or other 



Chap. 4.] CALIFORNIA. 33 

personal property so seized, or for damages for the seizure, deten- 
tion, sale of, or injury to any goods, wares, merchandise, or other 
personal property seized, or for damages done to any person or prop- 
erty in making any such seizure. 

2. To recover stock sold for a delinquent assessment, upon the 
ground of irregularity in the assessment, or irregularity or defect of 
the notice of sale, or defect or irregularity in the sale. 

No Limitation. 

To actions for the recovery of money or other property deposited 
with any bank, banker, trust company, or savings and loan society. 

General Provisions. 

The period of limitation begins to run from the time the cause of 
action accrues, or, in other words, from the time when suit can be 
brought. 

A partial payment of an amount due under an agreement in 
writing (promissory notes included), or under an agreement not in 
writing (book accounts included), does not prevent the statute run- 
ning ; but where a balance is due upon a mutual, open and current 
account, where there have been reciprocal demands between the par- 
ties, the statute begins to run from the last item proved in the ac- 
count on either side. 

If when the cause of action accrues against a person he is out of 
the State, the action may be commenced within the time above 
limited, after his return to the State, and if, after the cause of 
action accrues, he departs from the State, the time of his absence 
is not part of the time limited for the commencement of the 
action. 

If a person entitled to bring an action be, at the time the cause 
of action accrues, either within the age of majority, insane, impris- 
oned on a criminal charge, or in execution under the sentence of a 
Criminal Court for a term less than for life, or a married woman, 
and her husband be a necessary party with her in commencing such 
action, the time of such disability is not a part of the time limited. 

If a person entitled to bring an action die before the expiration of 
the time limited for the commencement thereof, and the cause of ac- 
tion survive, an action may be commenced by his representatives, 



34 California. [Part 3. 

after the expiration of that time, and within six months from his 
death. If a person, against whom an action may be brought, die be- 
fore the expiration of the time limited for the commencement 
thereof, and the cause of action survive, an action may be com- 
menced against his representatives after the expiration of that time, 
and within one year after the issuing of letters testamentary or of 
administration. 

When a person is an alien subject, or citizen of a country at war 
with the United States, the time of the continuance of the war is 
not part of the period limited for the commencement of the action. 

When the commencement of an action is stayed by injunction or 
statutory prohibition, the time of the continuance of the injunction 
or prohibition is not part of the time limited for the commencement 
of the action. 

When a cause of action has arisen in another State, or in a for- 
eign country, and by the laws thereof an action thereon cannot there 
be maintained against a person by reason of the lapse of time, an 
action thereon shall not be maintained against him in this State, ex- 
cept in favor of one who has been a citizen of this State, and who 
has held the cause of action from the time it accrued. 

No acknowledgment or promise is sufficient evidence of a new or 
continuing contract, by which to take the case out of the operation 
of the statute, unless the same is contained in some writing, signed 
by the party to be charged thereby. 



Chap. 5. J CALIFORNIA. 35 

CHAPTER V. 

PARTIES TO SUITS— COMMENCEMENT OF ACTIONS. 

Every action must be prosecuted in the name of the real party in 
interest, except in the case of an executor, or administrator, or trus- 
tee of an express trust (including a person with whom, or in whose 
name, a contract is made for the benefit of another), or a person ex- 
pressly authorized by statute, who may sue without joining with 
him the person or persons for whose benefit the action is brought. 

In the case of an assignment of a right to recover money or other 
personal property by a judicial proceeding, the action by the assignee 
is without prejudice to any set-off or other defense existing at the 
time of, or before notice of, the assignment ; but this does not ap- 
ply to a negotiable promissory note or bill of exchange, transferred, 
in good faith and upon good consideration, before maturity. 

Persons severally liable upon the same obligation or instrument, 
including the parties to bills of exchange and promissory notes, and 
sureties on the same or separate instruments, may all or any of 
them be included in the same action, at the option of the plaintiff. 

Civil actions in the Courts of this State are commenced by filing 
a complaint. In the Justices' Courts, by filing a complaint and is- 
suing a summons thereon, or by the voluntary appearance and plead- 
ing of the parties. 

The plaintiff may have summons issued any time within one year 
after the complaint is filed with the Clerk or Justice. 

In the Superior Courts the defendant is allowed ten days after the 
service of summons and complaint to appear and answer the com- 
plaint, where service is made within the county in which the action 
is brought, and thirty days if served elsewhere. 

In the Superior Courts the summons and copy of complaint may 
be served by the Sheriff of the county where defendant may be found, 
or by any other person over the age of eighteen, not a party to the 
action. 



36 California. [Part 3. 

On Whom Summons to be Served. 

1. If the suit is against a corporation formed under the laws of 
this State, the President or other head of the corporation, Secretary, 
Cashier, or managing Agent thereof. 

2. If against a foreign corporation, or a non-resident, joint-stock 
company or association, doing business and having a managing or 
business Agent, Cashier, or Secretary within this State : the Agent, 
Cashier or Secretary. 

3. If against a minor under the age of fourteen years, residing 
within this State : such minor personally, and also his father, mother, 
or guardian ; or if there be none within this State, then any person 
having the care or control of such minor, or with whom he resides, 
or in whose service he is employed. 

4. If against a person residing within this State, who has been 
judicially declared to be of unsound mind, or incapable of conduct- 
ing his own affairs, and for whom a guardian has been appointed : 
Such person, and also his guardian. 

5. If against a county, city or town : The President of the Board 
of Supervisors, President of the Council, or Trustees, or other head 
of the legislative department thereof. 

6. In all other cases the defendant must be served personally. 

Service by Publication. 

When the person on whom the service is to be made resides out 
of the State, or has departed from the State, or cannot, after due 
diligence, be found within the State, or conceals himself to avoid 
service, or is a foreign corporation having no managing or business 
Agent, Cashier, or Secretary within the State, and that fact appears 
by affidavit to the satisfaction of the Court, or a Judge thereof, and 
it also appears by such affidavit, or by the verified complaint on file, 
that a cause of action exists against the defendant in respect to 
whom the service is to be made, or that he is a necessary or proper 
party to the action, such Court or Judge may make an order that 
the service be made by the publication of the summons. 

The order must direct the publication to be made in a newspaper, to 
be designated as most likely to give notice to the person to be served, 



Chap. 5.] CALIFORNIA. 37 

and for such length of time as may be deemed reasonable, at least 
once a week ; but publication against a defendant residing out of the 
State, or absent therefrom, must not be less than two months. In 
case of publication, where the residence of a non-resident or absent 
defendant is known, the Court or a Judge must direct a copy of the 
summons and complaint to be forthwith deposited in the Post-office, 
directed to the person to be served, at his place of residence. 
When publication is ordered, personal service of a copy of the sum- 
mons and complaint out of the State is equivalent to publication 
and deposit in the Post-office. In either case, the service of the 
summons is complete at the expiration of the time prescribed by the 
order for publication. 

Provisions in Justices' Courts. 

In Justices' Courts, the time for the appearance of the defendant 
must be set forth in the summons, and must be as follows : 

1 . Forthwith, if an order of arrest is indorsed upon the summons. 

2. In all other cases the summons must contain a direction that 
the defendant must appear and answer the complaint within five 
days, if the summons be served in the city and county, township or 
city, in which the action is brought ; within ten days if served out 
of the township or city, but in the county in which the action is 
brought; and within twenty days if served elsewhere. 

On whom summons to be served in Justice-Court actions : see rule 
for service in Superior Courts. 

Service by Publication. 

Rule in Superior Courts applicable to Justices' Courts. 

In Justice-Court actions the summons cannot be served out of the 
county of the Justice before whom the action is brought, except when 
the action is brought upon a joint contract or obligation of two or 
more persons who reside in different counties, and the summons has 
been served upon the defendant resident of the county, in which 
case the summons may be served upon the other defendants out of 
the county ; and except, also, when an action is brought against a 
party who has contracted to perform an obligation at a particular 



38 California. [Part 3. 

place, and resides in a different county, in which case summons may 
be served in the county where he resides; and except, also, where an 
action is brought for injury to person or property and the defendant 
resides in a different county, in which case summons may be served 
in the county w"here the defendant resides. 

The Justice may, within a year from the date of filing the com- 
plaint, issue as many alias summonses as may be demanded by the 
plaintiff. 

The summons in a Justice Court action may be served by a Sheriff 
or Constable of any of the counties of this State, or by any male resi- 
dent over the age of twenty-one years, not a party to the suit, and 
within the county where the action is brought, or it may be served 
by publication. When a summons is issued by a Justice of the Peace 
for service out of the county in which it was issued, the summons 
shall have attached to it a certificate, under seal by the County Clerk 
of such county, to the effect that the person issuing the same was an 
actino- Justice of the Peace at the date of the summons. 



CHAPTER VI. 

FORM OF CIVIL ACTIONS— PLEADINGS. 

There is in this State but one form of civil actions for the en- 
forcement or protection of private rights and the redress or preven- 
tion of private wrongs. 

In such action the party complaining is known as the plaintiff, and 
the adverse party as the defendant. 

Pleadings. 

Pleadings are the formal allegations by the parties of their re- 
spective claims and defenses, for the judgment of the Court. 



Chap. 6.] CALIFORNIA. 39 

The only pleadings allowed on the part of the plaintiff are — 

1. The complaint. 

2. The demurrer to the answer. 

3. Demurrer and answer to a cross-complaint. 
Those allowed on the part of defendant are — 

1. The demurrer to the complaint. 

2. The answer. 

3. Cross-complaint. 

A demurrer raises an issue of law. 

An answer raises an issue of fact. 

An issue of law is tried by the Court. 

An issue of fact is tried by a jury, unless a jury trial is waived. 

The complaint must contain a concise statement, in writing, of 
the facts constituting the cause of action. 

In the Justice Court a copy of the account, note, bill, bond, or 
instrument upon which the action is based, is sufficient. 

The plaintiff may unite several causes of action in the same com- 
plaint where they all arise out of — 

1. Contracts, express or implied. 

2. Claims to recover specific real property, with or without 
damages for the withholding thereof, or for waste committed thereon, 
and the rents and profits of the same. 

3. Claims to recover specific personal property, with or without 
damages for the withholding thereof. 

4. Claims against a trustee by virtue of a contract or by operation 
of law. 

5 Injuries to character. , 

6. Injuries to person. 

7. Injuries to property. 

The causes of action so united must all belong to one only of these 
classes, and must affect all the parties to the action, and not require 
different places of trial, and must be separately stated. # 

The defendant may demur to the complaint within the time re- 
quired in the summons to answer, when it appears upon the face 
thereof, either — 



40 California. [Part 3. 

1. That the Court has no jurisdiction of the person of the defend- 
ant, or the subject of the action ; or, 

2. That the plaintiff has not legal capacity to sue ; or, 

3. That there is another action pending between the same parties 
for the same cause ; or, 

4. That there is a defect, or misjoinder, of parties plaintiff or de- 
fendant ; or, 

5. That several causes of action have been improperly united ; or, 

6. That the complaint does not state facts sufficient to constitute a 
cause of action ; or, 

7. That the complaint is ambiguous, unintelligible, or uncertain. 
Unless the demurrer distinctly specify the grounds upon which any 

of the objections to the complaint are taken, it may be disregarded. 
The defendant may demur and answer at the same time. 

The answer of the defendant shall contain — 

1. A general or specific denial of the material allegations of the 
complaint controverted by the defendant. 

2. A statement of any new matter constituting a defense or coun- 
ter claim. If the complaint be verified, the denial of each allega- 
tion controverted must be specific, and be made positively, or ac- 
cording to the information and belief of the defendant. If the de- 
fendant has no information or belief upon the subject sufficient, to 
enable him to answer an allegation of the complaint, he may so 
state in his answer, and place his denial on that ground. If the com- 
plaint be not verified, a general denial is sufficient, but only puts in 
issue the material allegations of the complaint. 

The counter-claim above mentioned must be one existing in favor 
of a defendant, and against a plaintiff, between whom a several 
judgment might be had in the action, and arising out of one of the 
following causes of action : 

1. A cause of action arising out of the transaction set forth in 
the complaint as the foundation of the plaintiff's claim, or connected 
with the subject of the action. 

2. In an action arising upon contract ; any other cause of action 
arising upon contract, and existing at the commencement of the 
action. 



Chap. 6.] CALIFORNIA. 41 

If the defendant omit to set up a counter-claim arising out of 
the transaction set forth in the complaint as the foundation of the 
plaintiff's claim, or connected with the subject of the action, neither 
he nor his assignee can afterwards maintain an action against the 
plaintiff therefor. 

When cross-demands have existed between persons under such 
circumstances that, if one had brought an action against the other, a 
counter-claim could have been set up, the two demands shall be 
deemed compensated so far as they equal each other, and neither 
can be deprived of the benefit thereof by the assignment or death of 
the other. 

The plaintiff may, within the same length of time after the ser- 
vice of the answer as the defendant is allowed to answer after ser- 
vice of summons, demur to the answer of the defendant, or to one or 
more of the several defenses or counter-claims set up in the answer. 

The demurrer may be taken upon one or more of the following 
grounds : 

• 1. That several causes of counter-claim have been improperly 
joined. 

2. That the answer does not state facts sufficient to constitute a 
defense or counter-claim. 

3. That the answer is ambiguous, unintelligible or uncertain. 

It is not necessary for a party to set forth in a pleading the items 
of an account therein alleged ; but he must deliver to the adverse 
party, within five days after a demand thereof, in writing, a copy of 
the account, or be precluded from giving evidence thereof. 

Pleadings may be amended. 

Verification of Pleadings. 

EveYy pleading must be subscribed by the party or his attorney ; 
and when the complaint is verified the answer must be verified, un- 
less an admission of the truth of the complaint might subject the 
party to a criminal prosecution ; or unless an officer of the State, in 
his official capacity, is defendant. In all cases of the verification of 
a pleading, the affidavit of the party must state that the same is 
true of his own knowledge, except as to the matters which are 
therein stated on his information or belief, and as to those matters 



42 California. [Part 3. 

that he believes it to be true ; and where a pleading is verified it 
must be by the affidavit of a party, unless the parties are absent 
from the county where the attorney resides, or from some cause un- 
able to verify it, or the facts are within the knowledge of his attor- 
ney or other person verifying the same. When the pleading is veri- 
fied by the attorney, or any other person except one of the parties, 
he must set forth in the affidavit the reason why it is not made by 
one of the parties. When a corporation is a party, the verification 
can be made by an officer thereof. 

Provisions in Justices' Courts. 

Pleadings in Justices' Courts are not required to be in any partic- 
ular form, but must be such as to enable a person of common under- 
standing to know what is intended. 

May — except the complaint — be oral or in writing. 

Not to be verified. 

If in writing, must be filed with the Justice. 

If oral, an entry of their substance must be made in the docket. 

The defendant may, at any time before answering, demur to the 
complaint. 

The answer may contain a denial of any or all of the material 
facts stated in the complaint, which the defendant believes to be 
untrue, and also a statement, in a plain and direct manner, of any 
other facts constituting a defense or counter-claim, upon which an 
action might be brought by the defendant against the plaintiff in a 
Justice's Court. 

If the defendant omit to set up a counter-claim in the cases just 
mentioned, neither he nor his assignee can afterward maintain an 
action against the plaintiff therefor. 

WTien the answer contains new matter in avoidance, or consti- 
tuting a defense or a counter-claim, the plaintiff may, at any time 
before the trial, demur to the same for insufficiency, stating therein 
the grounds of such demurrer. 

The proceedings on demurrer are as follows : 

1. If the demurrer to the complaint is sustained, the plaintiff may 
within such time, not exceeding two days, as the Court allows, 
amend his complaint. 



Chap. 6.] CALIFORNIA. 43 

2. If the demurrer to the complaint is overruled, the defendant 
may answer forthwith. 

3. If the demurrer to an answer is sustained, the defendant may 
amend his answer within such time, not exceeding two days, as the 
Court may allow. 

4. If the demurrer to an answer is overruled, the action must 
proceed as if no demurrer had been interposed. 

Either party may, at any time before the conclusion of the trial, 
amend any pleading ; but if the amendment is made after the issue, 
and it appears to the satisfaction of the Court, by oath, that an ad- 
journment is necessary to the adverse party in consequence of such 
amendment, an adjournment must be granted. The Court may also, 
in its discretion, when an " adjournment be rendered necessary, re- 
quire as a condition to the allowance of such amendment, made 
after issue joined, the payment of costs to the adverse party, to be 
fixed by the Court, not exceeding twenty dollars. The Court may 
also, on such terms as may be just, and on payment of costs, relieve 
a party from a judgment by default taken against him by his mis- 
take, inadvertence, surprise, or excusable neglect ; but the applica- 
tion for such relief must be made within ten days after the entry of 
the judgment, and upon an affidavit showing good cause therefor. 

When a pleading is amended, the adverse party may answer or 
demur to it within such time, not exceeding two days, as the Court 
may allow. 



44 CALIFORNIA. [Part 3. 



CHAPTEE VII. 

ATTACHMENTS. 

The plaintiff, at the time of issuing the summons, or at any time 
afterward, may have the property of the defendant attached as se- 
curity for the satisfaction of any judgment that may be recovered, 
unless the defendant gives security to pay such judgment, in the 
folio wing cases : 

1. In an action upon a contract, express or implied, for the direct 
payment of money, where the contract is made or is payable in this 
State, and is not secured by any mortgage or lien upon real or per- 
sonal property, or any pledge of personal property ; or if originally 
so secured, such security has, without any act of the plaintiff, or the 
person to whom the security was given, becomes valueless. 

2. In an action upon a contract, express or implied, against a de- 
fendant not residing in this State. 

In Justices' Courts the writ to attach the property of the defend- 
ant must be issued at the time of, or after issuing summons, and be- 
fore answer. 

Before issuing the writ of attachment the Clerk of the Court, or 
Justice, must require an affidavit by, or on behalf of the plaintiff, 
showing : 

1. That the defendant is indebted to the plaintiff (specifying the 
amount of such indebtedness, over and above all legal set-offs or 
counter-claims) upon a contract, express or implied, for the direct 
payment of money, and that such contract was made or is paya- 
ble in this State, and that the payment of the same has not been se- 
cured by any mortgage or lien upon real or personal property, or any 
pledge of personal property ; or if originally so secured, that such 
security has, without any act of the plaintiff, or the person to whom 
the security was given, become valueless ; or, 

2. That the defendant is indebted to the plaintiff (specifying the 
amount of such indebtedness, over and above all legal set-offs or 



Chap. 7.] CALIFORNIA. 45 

counter-claims), and that the defendant is a non-resident of the 
State ; and, 

3. That the attachment is not sought and the action is not pros- 
ecuted to hinder, delay, or defraud any creditor of the defendant. 

The Clerk or Justice must also require, before issuing the writ, a 
written undertaking on the part of the plaintiff, (in the Superior 
Court, in a sum not less than two hundred dollars, and not exceed- 
ing the amount claimed by the plaintiff; and in the Justices' Court 
in a sum not less than fifty dollars, and not more than three hun- 
dred dollars,) by two or more sufficient sureties, to the effect that if 
the defendant recover judgment, the plaintiff will pay all costs that 
may be awarded to the defendant, and all damages which he may 
sustain by reason of the attachment, not exceeding the sum specified 
in the undertaking. 

The defendant may except to the sufficiency of the sureties. 

The writ of attachment in Superior-Court actions must be directed 
to the Sheriff of any county in which property of such defend- 
ant may be; in Justice-Court actions to the Sheriff of any 
county in which property of the defendant may be ; or to 
the Sheriff or Constable in the county where the suit is brought ; 
and must require him to attach and safely keep all the prop- 
erty of the defendant within his county, not exempt from exe- 
cution, or so much thereof as may be sufficient to satisfy the plain- 
tiff's demand — the amount of which must be stated in conformity 
with the complaint, unless the defendant gives him security, by the 
undertaking of at least two sufficient sureties, in an amount suffi- 
cient to satisfy such demand, besides costs, or in an aniount equal to 
the value of the property which has been, or is about to be, at- 
tached. Several writs may be issued at the same time to the Sheriffs 
of different counties. 

The writ of attachment must be executed, without delay, by the 
Sheriff to whom it is directed : 

1. Real property, standing upon the records of the county in the 
name of the defendant, must be attached by filing with the Recorder 
of the county, a copy of the writ, together with a description of the 
property attached, and a notice that it is attached, and by leaving a 
similar copy of the writ, description and notice with an occupant of 
the property, if there is one ; if not, then by posting the same in a 
conspicuous place on the property attached. 



46 California. . [Part 3. 

2. Real property, or an interest therein, belonging to the defend- 
ant, and held by any other person, or standing on the records of the 
county in the name of any other person, must be attached by filing 
with the Recorder of the county a copy of the writ, together with a 
description of the property, and a notice that such real property and 
any interest of the defendant therein, held by or standing in the 
name of such other person (naming him), are attached ; and by leav- 
ing with the occupant, if any, and with such other person or his 
agent, if known and within the county, or at the residence of either, 
if within the county, a copy of the writ, with a similar description 
and notice. If there is no occupant of the property, a copy of the 
writ, together with such description and notice, must be posted in a 
conspicuous place upon the property. The Recorder must index such 
attachment when filed, in the names both of the defendant and of 
the person by whom the property is held, or in whose name it stands 
on the records. 

3. Personal property, capable of manual delivery, must be at- 
tached by taking it into custody. 

4. Stocks or shares, or interest in stocks or shares of any corpora- 
tion or company, must be attached by leaving with the President or 
other head of the same, or the Secretary, Cashier, or other managing 
Agent thereof, a copy of the writ, and a notice stating that the stock 
or interest of the defendant is attached, in pursuance of such writ. 

5. Debts and credits, and other personal property not capable of 
manual delivery, must be attached by leaving with the person own- 
ing such debts, or having in his possession, or under his control, such 
credits and other personal property, or with his agent, a copy of the 
writ, and a notice that the debts owing by him to the defendant, or 
the credits and other personal property in his possession or under his 
control, belonging to the defendant, are attached in pursuance of 
such writ. 

Upon receiving information, in writing, from the plaintiff or his 
attorney, that any person has in his possession, or under his control, 
any credits or other personal property belonging to the defendant, or 
is owing any debt to the defendant, the Sheriff must serve upon such 
person a copy of the writ, and a notice that such credits or other 
property or debts, as the case may be, are attached in pursuance of 
such writ. 



Chap. 7.] CALIFORNIA. 47 

All persons having in their possession, or under their control, any 
credits or other personal property, belonging to the defendant, or 
owing any debts to the defendant at the time of service upon them 
of a copy of the writ and notice, as above directed, shall be, unless 
such property be delivered up or transferred, or such debts be 
paid to the Sheriff, liable to the plaintiff for the amount of such 
credits, property, or debts, until the attachment be discharged, or 
any judgment recovered by him be satisfied. 

Any person owing debts to the defendant, or having in his pos- 
session, or under his control, any credits or other personal property 
belonging to the defendant, may be required to attend before the 
Court or Judge, or a referee appointed by the Court or Judge, and 
be examined on oath respecting the same. The defendant may also 
be required to attend for the purpose of giving information respect- 
ing his property, and may be examined on oath. The Court or 
Judge may, after such examination, order personal property, capable 
of manual delivery, to be delivered to the Sheriff on such terms as 
may be just, having reference to any liens thereon, or any claims 
against the same, and a memorandum to be given of all other per- 
sonal property, containing the amount and description thereof. 

Perishable property attached must be sold by the Sheriff; the 
proceeds, and other property attached, must be retained by him to 
answer any judgment that may be recovered in the action, unless 
sooner subjected to execution upon another judgment recovered 
previous to the issuing of the attachment. Debts and credits at- 
tached may be collected by him, if the same can be done without 
suit. The Sheriff's receipt is a sufficient discharge for the amount 
paid. 

Whenever property has been taken by an officer under a writ of 
attachment, and it is made to appear satisfactorily to the Court, or a 
Judge thereof, that the interest of the parties to the action will be 
subserved by a sale thereof, the Court or a Judge may order such 
property to be sold in the same manner as property is sold under an 
execution, and the proceeds to be deposited in the Court, to abide 
the judgment in the action. 

"Whenever the defendant has appeared in the action, he may, upon 
reasonable notice to the plaintiff, apply to the Court in 'which the 
action is pending, or to the Judge thereof, for an order to discharge 



48 California. [Part 3. 

the attachment, wholly or in part ; and upon the execution of the 
undertaking mentioned hereafter, an order may be made, releasing 
from the operation of the attachment any or all of the property at- 
tached ; and all the property so released, and all of the proceeds of 
the sales thereof, must be delivered to the defendant, upon the justi- 
fication of the sureties on the undertaking, if required by the 
plaintiff. 

Before making such order, the Court or Judge must require an 
undertaking on behalf of the defendant, by at least two sureties, res- 
idents and freeholders, or householders, in the State, to the effect 
that, in case the plaintiff recover judgment in the action, the defend- 
ant will, on demand, re-deliver the attached property so released to 
the proper officer, to be applied to the payment of the judgment ; or, 
in default thereof, that the defendant and sureties will, on demand, 
pay to the plaintiff the full value of the property released. The 
Court or Judge making such order may fix the sum for which the 
undertaking must be executed, and if necessary, in fixing such sum, 
to know the value of the property released, the same may be ap- 
praised by one or more disinterested persons, to be appointed for 
that purpose. The sureties may be required to justify before the 
Court or Judge, and the property cannot be released without their 
justification, if the same be required. 

The defendant may also, at any time, either before or after the 
release of the attached property, or before any attachment shall 
have been actually levied, apply on motion, upon reasonable notice 
to the plaintiff, to the Court in which the action is brought, or to 
the Judge thereof, that the writ of attachment be discharged, on the 
ground that the same was improperly or irregularly issued. 

If, upon such application, it satisfactorily appears that the writ 
of attachment was improperly or irregularly issued, it must be dis- 
charged. 



Chap. 8.] California. 49 

CHAPTER VIII. 

CLAIM AND DELIVERY OF PERSONAL PROPERTY. 

The plaintiff in an action to recover the possession of personal 
property may, at the time of issuing the summons, or at any time 
before answer, claim the delivery of such property to him. 

"Where a delivery is claimed, an affidavit must be made by the 
plaintiff, or by some one on his behalf, showing — 

1. That the plaintiff is the owner of the property claimed (par- 
ticularly describing it), or is entitled to the possession thereof. 

2. That the property is wrongfully detained by the defendant. 

3. The alleged cause of the detention thereof, according to his best 
knowledge, information and belief. 

4. That it has not been taken for a tax, assessment or fine, pursu- 
ant to a statute ; or seized under an execution or an attachment 
against the property of the plaintiff ; or if so seized, that it is by 
statute exempt from seizure. 

5. The actual value of the property. 

The plaintiff or his attorney may, thereupon, by an indorsement 
in writing upon the affidavit, require the Sheriff of the county where 
the property claimed may be, to take the same from the defendant. 

Upon a receipt of the affidavit and notice with a written under- 
taking, executed by two or more sufficient sureties, approved by the 
Sheriff, to the effect that they are bound to the defendant in double 
the value of the property, as stated in the affidavit for the prosecu- 
tion of the action for the return of the property to the defendant — 
if return thereof be adjudged, and for the payment to him of such 
sum as may from any cause be recovered against the plaintiff — the 
Sheriff must forthwith take the property described in the affidavit, 
if it be in the possession of the defendant or his agent, and retain it 
in his custody. The Sheriff must, without delay, serve on the de- 
fendant a copy of the affidavit, notice and undertaking. 

The defendant may, within two days after the service of a copy of 



50 CALIFORNIA. • [Part 3. 

the affidavit and undertaking, give notice to the Sheriff that he ex- 
cepts to the sufficiency of the sureties. If he fails to do so, he is 
deemed to have waived all objections to them. When the defendant 
excepts, the sureties must justify on notice before the Judge or 
County Clerk ; and the Sheriff is responsible for the sufficiency of the 
sureties until the objection to them is either waived or until they 
justify. 

At any time before the delivery of the property to the plaintiff, 
the defendant may, if he do not except to the sureties of the plain- 
tiff, require the return thereof, upon giving to the Sheriff a written 
undertaking, executed by two or more sufficient sureties, to the effect 
that they are bound in double the value of the property, as stated in 
the affidavit of the plaintiff, for the delivery thereof to the plaintiff, 
if such delivery be adjudged ; and for the payment to hini of such 
sum as may, for any cause, be recovered against the defendant. If 
a return of the property be not so required within five days after 
the taking and service of notice to the defendant, it must be deliv- 
ered to the plaintiff, unless claimed by a third party, as hereafter set 
forth. The defendant's sureties, upon notice to the plaintiff of not 
less than two or more than five days, must justify before a Judge or 
County Clerk ; and upon such justification the Sheriff must deliver 
the property to the defendant. The Sheriff is responsible for the 
defendant's sureties until they justify, or until the justification is 
completed or waived, and may retain the property until that time; 
if they, or others in their place, fail to justify at the time and place 
appointed, he must deliver the property to the plaintiff. 

If the property taken be claimed by any other person than the de- 
fendant or his agent, and such person make affidavit of his title 
thereto, or right to the possession thereof, stating the grounds of 
such title or right, and serve the same upon the Sheriff, the Sheriff 
is not bound to keep the property or deliver it to the plaintiff, unless 
the plaintiff, on demand of him, or his agent, indemnify the Sheriff 
against such claim, by an undertaking, by two sufficient sureties ; 
and no claim to such property by any other person than the defend- 
ant or his agent is valid against the Sheriff, unless so made. 

The provisions contained in this chapter are applicable to cases in 
Justices' Courts, the word " Constable " being substituted for 
" Sheriff," and "Justice" for "Judge." 



Chap. 9.] CALIFORNIA. 51 

CHAPTEE IX. 

ARREST AND BAIL. 

The defendant may be arrested in a civil action in the following 
cases : 

1. In an action for the recovery of money or damages on a cause 
of action arising upon contract, express or implied, when the de- 
fendant is about to depart from the State, with intent to defraud 
his creditors. 

2. In an action for a fine or penalty, or for money or property 
embezzled, or fraudulently misapplied, or converted to his own use, 
by a public officer, or an officer of a corporation, or an attorney, 
factor, broker, agent, or clerk, in the course of his employment as 
such ; or by any other person in a fiduciary capacity ; or for miscon- 
duct or neglect in office, or in a professional employment ; or for a 
willful violation of duty. 

3. In an action to recover the possession of personal property un- 
justly detained, when the property or any part thereof has been 
concealed, removed, or disposed of, to prevent its being found or 
taken by the Sheriff. 

4. When the defendant has been guilty of a fraud in .contracting 
the debt, or incurring the obligation for which the action is brought ; 
or in concealing or disposing of the property, for the taking, deten- 
tion, or conversion of which the action is brought. 

5. When the defendant has removed or disposed of his property, 
or is about to do so, with intent to defraud his creditors. 

The order of arrest is made upon affidavit of the plaintiff, or some 
other person, that a sufficient cause of action exists, and the case is 
one of those mentioned above. 

Before making the order of arrest, the Judge must require a 
written undertaking on the part of the plaintiff, with sureties in 
an amount to be fixed by the Judge, which must be at least five 
hundred dollars, to the effect that the plaintiff will pay all costs 
which may be adjudged to the defendant, and all damages' which he 



52 California. [Part 3. 

may sustain by reason of the arrest, if the same be wrongful, or without 
sufficient cause, not exceeding the sum specified in the undertaking. 
In the Justice's Court, the defendant may be arrested in a civil 
action, in the following cases : 

1. In an action for the recovery of money or damages, on a cause 
of action arising upon contract, express or implied, when the defend- 
ant is about to depart from the State, with intent to defraud his 
creditors. 

2. In an action for a fine or penalty, or for money or property 
embezzled or fraudulently misapplied, or converted to his own use, 
by one who received it in a fiduciary capacity. 

3. When the defendant has been guilty of a fraud in contracting 
the debt, or incurring the obligation for which the action was brought. 

4. When the defendant has removed, concealed, or disposed of 
his property, or is about to do so, with intent to defraud his cred- 
itors. 

No female can be arrested in an action in the Justices' Court. 
Before an order of arrest can be made, the party applying must 
prove to the satisfaction of the Justice, by the affidavit of himself, 
or some other person, the facts upon which the application is 
founded, and the plaintiff must execute and deliver to the Justice a 
written undertaking in the sum of three hundred dollars, with suf- 
ficient sureties, to the effect that the plaintiff will pay all costs that 
may be adjudged to the defendant, and all damages which he may 
sustain by reason of the arrest, if the same be wrongful, or without 
sufficient cause, not exceeding the sum specified in the undertaking. 



Chap. 10 and 11.] California. 53 



CHAPTER X. 

INJUNCTIONS. 

An injunction is a writ or order requiring a person to refrain from 
a particular act. It may be granted in the following cases : 

1. When it appears by the complaint that the plaintiff is entitled 
to the relief demanded, and such relief, or any proof thereof, con- 
sists in restraining the commission or continuance of the act com- 
plained of, either for a limited period or perpetually. 

2. When it appears by the complaint or affidavit, that the com- 
mission or continuance of some act during the litigation would pro- 
duce waste, great or irreparable injury to the plaintiff. 

3. When it appears, during the litigation, that the defendant is 
doing or threatens, or is about to do, or is procuring or suffering to 
be done, some act in violation of the plaintiff's rights respecting the 
subject of the action, and tending to render the judgment inef- 
fectual. 



CHAPTER XI. 

JUDGMENTS AND JUDGMENT LIENS. 

A judgment is the final determination of the rights of the parties 
in an action or proceeding. 

A judgment may be given for or against one or more of several 
plaintiffs, and for or against one or more of several defendants ; and 
it may, when the justice of the case requires it, determine the ulti- 
mate rights of the parties on each side, as between themselves. 



54 California. [Part 3. 

In an action against several defendants, the Court may, in its dis- 
cretion, render judgment against one or more of them, leaving the 
action to proceed against the others, whenever a several judgment is 
proper. 

The relief granted to the plaintiff, if there be no answer, can not 
exceed that which he shall have demanded in his complaint ; but 
in any other case, the Court may grant him any relief consistent 
with the case made by the complaint and embraced within the 
issue. 

An action may be dismissed, or a judgment of nonsuit entered, in 
the following cases : 

1. By the plaintiff himself, at any time before trial, upon the pay- 
ment of costs, if a counter-claim has not been made or affirmative 
relief sought by the cross-complaint or answer of defendant. 

2. By either party, upon the written consent of the other. 

3. By the Court, when the plaintiff fails to appear on the trial, 
and the defendant appears and asks for the dismissal. 

4. By the Court, when, upon the trial, and before the final sub- 
mission of the case, the plaintiff abandons it. 

5. By the Court, upon motion of the defendant, when, upon the 
trial, the plaintiff fails to prove a sufficient case for the jury. 

In all other cases, judgment must be rendered on the merits. 

Judgment upon Failure to Answer. 

Judgment may be had if the defendant fail to answer or demur to 
the complaint within the time specified in the summons, or within 
such further time as may have been granted, as follows : 

1. In an action arising upon contract for the recovery of money 
or damages only, the Clerk, upon application of the plaintiff, must 
enter the default of the defendant, and immediately thereafter enter 
judgment for the amount specified in the summons, including the 
costs, against the defendant ; or against one or more of several de- 
fendants, when the action is against two or more defendants, jointly 
or severally liable on a contract, and the summons is served on one 
or more, and not on all of them ; in which case the plaintiff may pro- 
ceed against the defendants served in the same manner as if they 
were the only defendants. 



Chap. 11.] CALIFORNIA. 55 

2. In other actions, the Clerk must enter the default of the de- 
fendant ; and, thereafter, the plaintiff may apply at the first or any 
subsequent term of the Court for the relief demanded in the com- 
plaint. If the taking of an account, or the proof of any fact, is ne- 
cessary to enable the Court to give judgment, or to carry the judg- 
ment into effect, the Court may take the account or hear the proof; 
or may, in its discretion, order a reference for that purpose. And 
when the action is for damages, in whole or in part, the Court may 
order the damages to be assessed by a jury ; or if, to determine the 
amount of damages, the examination of a long account be involved, 
by a reference as above provided. 

3. In an action where the service of summons was by publica- 
tion, the plaintiff, upon the expiration of the time for an- 
swering, may, upon proof of the publication, and that no answer 
has been filed, apply for judgment ; and the Court must there- 
upon require proof to be made of the demand mentioned in 
the complaint ; and if the defendant be not a resident of the 
State, must require the plaintiff or his agent to be examined on 
oath respecting any payments that have been made to the plaintiff, or 
to any one for his use, on account of such demand, and may render 
judgment for the amount which he is entitled to recover. 

Judgment by Confession. 

A judgment by confession may be entered without action, either 
for money due or to become due, or to secure any person against 
contingent liability on behalf of the defendant, or both. 

A statement in writing must be made, signed by the defendant 
and verified by his oath, to the following effect : 

1. It must authorize the entry of judgment for a specified sum. 

2. If it be for money due, or to become due, it must, state con- 
cisely the facts out of which it arose, and show that the sum con- 
fessed therefor is justly due, or to become due. 

3. If it be for the purpose of securing the plaintiff against a con- 
tingent liability, it must state concisely the facts constituting the 
liability, and show that the sum confessed therefor does not exceed 
the same. 



56 California. . [Part 3. 

Judgment on Proceedings, Without Action, by Submission of 
a Controversy. 

Parties to a question in difference, which might be the subject of 
a civil action, may, without action, agree upon a case containing the 
facts upon which the controversy depends, and present a submission 
of the same to any Court which would have jurisdiction if an 
action had been brought ; but it must appear by affidavit that the 
controversy is real, and the proceedings in good faith to determine 
the rights of the parties. The Court must, thereupon, hear and de- 
termine the case, and render judgment thereon, as if an action 
were pending. 

Judgment After Verdict. 

When trial by jury has been had, judgment must be entered by 
the Clerk in conformity to the verdict, within twenty-four hours af- 
ter the rendition of the verdict, unless the Court order the case to be 
reserved for argument for further consideration, or grant a stay of 
proceedings. 

Upon the trial of a question of fact by the Court, its decision 
must be given in writing, and filed with the Clerk, within thirty 
days after the cause is submitted for decision. 

Judgment upon the decision must be entered accordingly. 

On a judgment for the plaintiff upon an issue of law, he may pro- 
ceed as in the case of judgment upon failure to answer. If judg- 
ment be for the defendant upon an issue of law, and the taking of 
an account or the proof of any fact be necessary to enable the Court 
to complete the judgment, a reference may be ordered. 

Proceedings Against Joint Debtors. 

When a judgment is recovered against one or more of several 
persons, jointly indebted upon an obligation, those who were not 
originally served with the summons, and did not appear to the ac- 
tion, may be summoned to show cause why they should not be bound 
by the judgment in the same manner as though they had been orig- 
inally served with the summons. 

Proceedings on Offer of Defendant to Compromise. 

The defendant may, at any time before the trial or judgment, serve 



Chap. 11.] CALIFORNIA. 57 

upon the plaintiff an offer to allow judgment to be taken against him 
for the sum or property, or to the effect therein specified. If the 
plaintiff accept the offer, and give notice thereof within five days, 
he may file the offer, with proof of notice of acceptance, and the 
Clerk must thereupon enter judgment accordingly. If the notice of 
acceptance be not given, the offer is to be deemed withdrawn, and 
cannot be given in evidence upon the trial ; and if the plaintiff fail 
to obtain a more favorable judgment, he cannot recover costs, but 
must pay the defendant's costs from the time of the offer. 

Gold Coin or Currency Judgment. 

In an action on a contract or obligation in writing, for the direct 
payment of money, made payable in a specified kind of money or 
currency, judgment for the plaintiff, whether it be by default or after 
verdict, may follow the contract or obligation, and be made payable 
in the kind of money or currency specified therein ; and in all ac- 
tions for the recovery of money, if the plaintiff allege in his com- 
plaint that the same was understood and agreed by the respective 
parties to be payable in a specified kind of money or currency, and 
this fact is admitted by the default of the defendant, or established 
by evidence, the judgment for the plaintiff must be made payable in 
the kind of money or currency so alleged in the complaint ; and, in 
an action against any person for the recovery of money received by 
such person in a fiduciary capacity, or to the use of another, judg- 
ment for the plaintiff must be made payable in the kind of money 
or currency so received by such person. 

Judgment in Replevin. 

In an action to recover the possession of personal property, judg- 
ment for the plaintiff may be for the possession or value thereof, in 
case a delivery cannot be had, and damages for the detention. If 
the property has been delivered to the plaintiff, and the defendant 
claim a return thereof, judgment for the defendant may be for a re- 
turn of the property, or the value thereof, in case a return cannot 
be had, and damages for taking and withholding the same. 

Judgment Lien. 

From the time the judgment is docketed it becomes a lien upon 



58 California. [Part 3. 

all the real property of the judgment debtor, not exempt from exe- 
cution, in the county, owned by him at the time, or which he may 
afterward acquire, until the lien ceases. The lien continues for two 
years, unless the enforcement of the judgment be stayed on appeal 
by execution of a sufficient undertaking, in which case the lien of 
the judgment ceases. [See elsewhere, how judgments in Justices' 
Courts are made a lien on real property.] 

A transcript of the original docket, certified by the Clerk, may be 
filed with the Recorder of any other county ; and from the time of 
the filing the judgment becomes a lien upon all the real property of 
the judgment debtor, not exempt from execution, in such county, 
owned by him at the time, or which he may afterward, and before 
the lien expires, acquire. The lien continues for two years. 

Provisions in Justices' Courts. 

Judgment by Default. 

If the defendant fail to appear and to answer or demur at the 
time specified in the summons, then, upon proof of service of the 
summons, the following proceedings must be had : 

1. If the action is based upon a contract, and is for the recovery 
of money or damages only, the Court must render judgment in favor 
of plaintiff for the sum specified in the summons. 

2. In all other actions, the Court must hear the evidence offered 
by the plaintiff, and must render judgment in his favor for such a 
sum (not excceeding the amount stated in the* summons) as appears 
by such evidence to be just. 

In the following cases the same proceedings must be had, and 
judgment must be rendered in like manner, as if the defendant 
failed to appear and answer or demur : 

1. If the complaint has been amended, and the defendant fails to 
answer it, as amended, within the time allowed by the Court. 

2. If the demurrer to the complaint is overruled, and the defend- 
ant fails to answer at once. 

3. If the demurrer to the answer is sustained, and the defendant 
fails to amend the answer within the time allowed by the Court. 



Chap. 11.] CALIFORNIA. 59 

Judgments other than by default. 

Judgments upon confession may be entered up in any Justice's 
Court specified in the confession. 

Judgment that the action be dismissed without prejudice to a new 
action, may be entered, with costs, in the following cases : 

1. When the plaintiff voluntarily dismisses the action before it is 
finally submitted. 

2. When he fails to appear at the time specified in the summons, 
or at the time to which the action has been postponed, or within one 
hour thereafter. 

3. When, after a demurrer to the complaint has been sustained, 
the plaintiff fails to amend it within the time allowed by the Court. 

4. When it is objected to at the trial, and appears by the evidence, 
that the action is brought in the wrong county, or township, or 
city; but if the objection is taken and overruled, it is cause only of 
reversal on appeal, and does not otherwise invalidate the judgment ; 
if not taken at the trial, it is waived. 

When a trial by jury has been had, judgment must be entered by 
the Justice, at once, in conformity with the verdict. 

When the trial is by the Court, judgment must be entered at the 
end of the trial. 

When the amount found due to either party exceeds the sum for 
which the Justice is authorized to enter judgment, such party may 
remit the excess, and judgment may be entered for the residue. 

If the defendant, at any time before the trial, offer in writing to 
allow judgment to be taken against him for a specific sum, the 
plaintiff may immediately have judgment therefor, with the costs 
then accrued ; but if he do not accept such offer before the trial, 
and fail to recover in the action a sum in excess of the offer, he 
cannot recover costs, but costs must be adjudged against him, and 
if he recover, be deducted from his recovery. The offer and failure 
to accept it cannot be given in evidence, nor affect the recovery other- 
wise than as to costs. 

The Justice must tax and include in the judgment the costs al- 
lowed by law to the prevailing party. 

An abstract of the judgment may be filed and docketed in the 
office of the County Clerk of the county in which the judgment was 



60 • California. [Part 3. 

rendered, and the judgment docketed in the judgment docket of the 
Superior Court thereof. 

A judgment rendered in a Justices' Court creates no lien upon any 
lands of the defendant, unless such an abstract is filed in the office of 
the Recorder of the county in which the lands are situated. When 
so filed, and from the time of filing the judgment, it becomes a lien 
upon all the real property of the judgment debtor, not exempt from 
execution, in such county, owned by him at the time, or which he 
may afterward, and before the lien expires, acquire. The lien con- 
tinues for two years, unless the judgment be previously satisfied. 



CHAPTEK XII. 

EXECUTION— SALE AND REDEMPTION 



The party in whose favor judgment is given may, at any time 
within five years after the entry thereof, have a writ of execution 
issued for its enforcement — same in Justice-Court actions. The ex- 
ecution may be made returnable at any time not less than ten nor 
more than sixty days after its receipt by the Sheriff or Constable. 

Executions may at the same time be issued to different counties. 

In Justices' Courts the Justice before whom the action is brought 
may issue an execution directed to the Sheriff or Constable of the 
county in which judgment is obtained ; when it is desired to issue 
execution directed to the Sheriff of another county, it is necessary to 
file an abstract of the judgment with the County Clerk of the 
county within which the judgment is obtained, and have him issue 
the execution. 

Notwithstanding the death of a party after the judgment, execu- 
tion thereon may be issued, or it may be enforced as follows : 



Chap. 12.] . CALIFORNIA. 61 

1. In the case of the death of the judgment creditor, upon the 
application of his executor or administrator, or successor in in- 
terest. 

2. In the case of the judgment debtor, if the judgment be for the 
recovery of real or personal property, or the enforcement of a lien 
thereon. 

When any judgment has been rendered for or against the testator 
or intestate in his lifetime, no execution shall issue thereon after his 
death, except as above provided. If execution is actually levied 
upon any property of the decedent before his death, the same may 
be sold for the satisfaction thereof ; and the officer making the sale 
must account to the executor or administrator for any suplus in his 
hands. 

The following property is exempt from execution, except upon a 
judgment recovered for its price, or upon a mortgage thereon : 

1. Chairs, tables, desks and books, to the value of two hundred 
dollars. 

2. Necessary household, table and kitchen furniture, including one 
sewing-machine, stoves, stove-pipes and stove furniture, wearing ap- 
parel, beds, bedding and bedsteads, hanging pictures, oil paintings 
and drawings drawn or painted by any member of the family, and 
family portraits, and their necessary frames, and provisions actually 
provided for individual or family use, sufficient for three months, 
and three cows and their sucking calves, four hogs with their sucking 
pigs, and food for such cows and hogs for one month. 

3. The farming utensils or implements of husbandry of the judg- 
ment debtor ; also, two oxen, or two horses, or two mules, and their 
harness, one cart or wagon, and food for such oxen, horses, or mules 
for one month; also, all seed, grain or vegetables actually provided, 
reserved or on hand, for the purpose of planting or sowing at any 
time within the ensuing six months, not exceeding in value the sum 
of two hundred dollars, and seventy-five bee-hives, and one horse and 
vehicle belonging to any person who is maimed or crippled, and the 
same is necessary in his business. 

4. Tools or implements of a mechanic or artisan, necessary to 
carry on trade ; the notarial seal, and records, and office furniture 
of a notary public ; the instruments and chest of a surgeon, phy- 



62 California. * [Part 3. 

sician, surveyor and dentist, necessary to the exercise of their pro- 
fession, with their scientific and professional libraries, and necessary 
office furniture ; >the professional libraries of attorneys, judges, minis- 
ters of the gospel, editors, school-teachers and music-teachers, and 
their necessary office furniture ; also, the musical instruments of 
music-teachers actually used by them in giving instructions ; and all 
the indexes, abstracts, books, papers, maps, and office furniture of a 
searcher of records, necessary to be used in his profession. 

5. The cabin or dwelling of a miner, not exceeding in value the 
sum of five hundred dollars ; also, his sluices, pipes, hose, windlass, 
derrick, cars, pumps, tools, implements and appliances necessary for 
carrying on any kind of mining operations, not exceeding in value 
the aggregate sum of five hundred dollars ; and two horses, mules or 
oxen, with their harness ; and food for such horses, mules or oxen, 
for one month, when necessary to be used in any whim, windlass, 
derrick, car, pump or hoisting gear, and also his mining claim actu- 
ally worked by him, not exceeding in value one thousand dollars. 

6. Two oxen, two horses or two mules, and their harness ; one cart 
or wagon, one dray or truck, one coupe, one hack or carriage for one or 
two horses, by the use of which a cartman, drayman, truckman, 
huckster, peddler, hackman, teamster, or other laborer habitually 
earns his living ; and one horse, with vehicle and harness, or other 
equipments, used by a physician, surgeon, constable, or minister of 
the gospel, in the legitimate practice of his profession or business, 
with food for such oxen, horses or mules for one month. 

7. Poultry, not exceeding in value twenty-five dollars. 

8. The earnings of the judgment debtor for his personal services 
rendered at any time within thirty days next preceding the levy of 
execution, or levy of attachment, when it appears by the debtor's af- 
fidavit, or otherwise, that such earnings are necessary for the use of his 
family residing in this State, supported wholly or in part by his labor; 
but where the debts are incurred by any such person, or his wife or fam- 
ily, for the common necessaries of life, the one-half of such earnings 
above mentioned are, nevertheless, subject to execution, garnishment 
or attachment, to satisfy debts so incurred. 

9. The shares held by a member of a homestead association duly 
incorporated, not exceeding in value one thousand dollars, if the per- 
son holding the shares is not the owner of a homestead under the law 



Chap. 12.] CALIFORNIA. 63 

of this State ; all the nautical instruments and wearing apparel of 
any master, officer or seaman of any steamer or other vessel. 

10. All moneys, benefits, privileges or immunities accruing, or in 
any manner growing out of any life insurance on the life of the 
debtor, if the annual premiums paid do not exceed five hundred dol- 
lars. 

11. All fire engines, hooks and ladders, with the carts, trucks and 
carriages, hose, buckets, implements and apparatus thereto apper- 
taining, and all furniture and uniform of any fire company or de- 
partment organized under any law of this State. 

1 2. All arms, uniforms and accoutrements required by law to be 
kept by any person ; and also one gun; to be selected by the 
debtor. 

13. All court-houses, jails, public offices and buildings, lots, 
grounds and personal property, the fixtures, furniture, books, papers 
and appurtenances belonging and pertaining to the court-house, jail 
and public offices belonging to any county of this State ; and all 
cemeteries, public squares, parks and places, public buildings, town 
halls, markets, buildings for the use of fire departments and military 
organizations, and the lots and grounds thereto belonging and apper- 
taining, owned or held by any town or incorporated city, or dedi- 
cated by such town or city to health, ornament, or public use, or for 
the use of any fire or military company organized under the laws of 
this State. 

For exemption of homesteads, see "Homesteads." 

Notice of Sale. 

Before the sale of property on execution, notice thereof must be 
given as follows : [Same in Justice-Court actions.] 

1. In the case of perishable property : by posting written notice 
of the time and place of sale in three public places of the township 
or city where the sale is to take place, for such time as may be rea- 
sonable, considering the character and condition of the property. 

2. In case of other personal property : by posting a similar notice 
in three public places in the township or city where the sale is to 
take place, for not less than five nor more than ten days. 

3. In case of real property : by posting a similar notice particu- 



64 California. [Part 3. 

larly describing the property, for twenty days, in three public places 
of the township or city where the property is situated, and also 
where the property is to be sold, and publishing a copy thereof once 
a week for the same period, in some newspaper published in the 
county, if there be one. 

Sale of Real Property — When Absolute or Not. 

Upon a sale of real property the purchaser is substituted to and 
acquires all the right, title, and interest, and claim of the judgment 
debtor thereto ; and when the estate is less than a leasehold of two 
years' unexpired term, the sale is absolute. In other cases the prop- 
erty is subject to redemption. 

Certificate of Sale of Real Estate. 

The officer must give the purchaser a certificate of sale, and a 
duplicate of such certificate must be filed by the officer in the office 
of the Recorder of the county. 

By Whom Property may be Redeemed, and When. 

Property sold, subject to redemption, as above provided, or any 
part sold separately, may be redeemed in the manner hereinafter pro- 
vided, by the following persons or their successors in interest : 

1. The judgment debtor, or his successor in interest, in the whole 
or any part of the property. 

2. A creditor, having a lien by judgment or mortgage, on the 
property sold, or on some share or part thereof subsequent to that 
on which the property was sold. 

The judgment debtor or redemptioner may redeem the property 
from the purchaser any time within six months after the sale, on 
paying the purchaser the amount of the purchase, with two per 
cent a month thereon in addition, up to the time of redemption, 
together with the amount of any assessment or taxes which the 
purchaser may have paid thereon after the purchase, and interest 
on such amount ; and if the purchaser be also a creditor, having a 
prior lien to that of the redemptioner, other than the judgment 
under which such purchase was made, the amount of such lien, with 
interest. 



Chap. 12.] CALIFORNIA. 65 

If property be so redeemed by a redemptioner, another redemp- 
tioner may, within sixty days after the last redemption, again re- 
deem it from the last redemptioner, on paying the sum paid on such 
last redemption, with four per cent, thereon in addition, and the 
amount of any assessment or taxes which the last redemptioner may 
have paid thereon after the redemption by him with interest on such 
amount ; and, in addition, the amount of any liens held by said last 
redemptioner prior to his own, with interest ; but the judgment 
under which the property was sold need not be so paid as a lien. 
The property may be again, and as often as a redemptioner is so dis- 
posed, redeemed from any previous redemptioner within sixty clays 
after the last redemption, on paying the sum paid on the last pre- 
vious redemption, with four per cent, thereon in addition, and the 
amount of any assessments or taxes which the last previous redemp- 
tioner paid after the redemption by him, Avith interest thereon ; and 
the amount of any liens, other than the judgment under which the 
property was sold, held by the last redemptioner previous to his 
own, with interest. Written notice of redemption must be given 
to the Sheriff, and a duplicate filed with the Recorder of the county ; 
and if any taxes or assessments are paid by the redemptioner, or if 
he has or acquires any lien other than that upon which the redemp- 
tion was made, notice thereof must in like manner be given to the 
Sheriff, and filed with the Recorder ; and if such notice be not filed, 
the property may be redeemed without paying such tax, assessment, 
or lien. If no redemption be made within six months after the 
sale, the purchaser or his assignee is entitled to a conveyance ; or, if 
so redeemed, whenever sixty days have elapsed, and no other re- 
demption has been made, and notice thereof given, and the time for 
redemption has expired, the last redemptioner or his assignee is en- 
titled to a Sheriff's deed ; but in all cases the judgment debtor shall 
have the entire period of six months from the date of the sale to re- 
deem the property. If the judgment debtor redeem, he must take 
the same payments as are required to effect a redemption by a re- 
demptioner. If the debtor redeem, the effect of the sale is termi- 
nated, and he is restored to his estate. Upon a redemption by the 
debtor, the person to whom the payment is made must execute and 
deliver to him a certificate of redemption, acknowledged or proved 
before an officer authorized to take acknowledgments of conveyances 



66 California. [Part 3. 

of real property. Such certificate must be filed and recorded in the 
office of the Recorder of the county in which the property is situated. 
Payment may be made to the purchaser or redemptioner, or for 
him, to the officer who made the sale. 

A redemptioner must produce to the officer or person from whom 
he seeks to redeem, and serve with his notice to the Sheriff — 

1. A copy of the docket of the judgment under which he claims 
the right to redeem, certified by the Clerk of the Court, or of the 
county where the judgment is docketed; or if he redeem upon a 
mortgage or other lien, a note of the record thereof certified bv the 
Recorder. 

2. A copy of any assignment ' necessary to establish his claims, 
rerified by the affidavit of himself or of a subscribing witness thereto. 

3. An affidavit by himself or his agent, showing the amount then 
actually due on the lien. 

Until the expiration of the time allowed for redemption, the Court 
may restrain the commission of waste on the property. 

The purchaser, from the time of the sale until a redemption, and 
a redemptioner, from the time of his redemption until another re- 
demption, is entitled to receive from the tenant in possession the 
rents of the property sold, or the value of the use and occupation 
thereof. But when any rents or profits have been received by the 
judgment creditor or purchaser, or his or their assigns, from the 
property thus sold preceding such redemption, the amounts of such 
rents and profits shall be a credit upon the redemption money to be 
paid. 



Chap. 13. J California. 67 

CHAPTER XIII. 

PROCEEDINGS SUPPLEMENTARY TO EXECUTION. 



When an execution against property of the judgment debtor — or 
any one of the several debtors in the same judgment, issued to the 
Sheriff of the county where he resides, or if he do not reside in this 
State, to the Sheriff of the county where the judgment roll is filed — 
is returned unsatisfied, in whole or in part, the judgment creditor, at 
any time after such return is made, is entitled to an order from the 
Judge of the Court, requiring such judgment debtor to appear and 
answer concerning his property, before such Judge, or a referee ap- 
pointed by him, at a time and place specified in the order ; but no 
judgment debtor must be required to attend before a Judge or 
referee out of the county in which he resides. 

After the issuing of an execution against property, and upon 
proof, by affidavit of a party or otherwise, to the satisfaction of the 
Court, or of a Judge thereof, that any judgment debtor has property 
which he unjustly refuses to apply toward the satisfaction of the 
judgment, such Court or Judge may, by an order, require the judg- 
ment debtor to appear at a specified time and place before such 
Judge, or a referee appointed by him, to answer concerning the 
same ; and such proceedings may thereupon be had for the applica- 
tion of the property of the judgment debtor toward the satisfaction 
of the judgment as are provided upon the return of an execution. 
Instead of the order requiring the attendance of the judgment 
debtor, the Judge may, upon affidavit of the judgment creditor, his 
agent or attorney, if it appears to him that there is danger of the 
debtor absconding, order the Sheriff to arrest the debtor and bring 
him before such Judge. Upon being brought before the Judge, he 
may be ordered to enter into an undertaking, with sufficient surety, 
that he will attend from time to time before the Judge or referee, as 
may be directed, during the pendency of proceedings and until the 
final termination thereof, and will not, in the meantime, dispose of 



6S California. [Part 3. 

any portion of his property, not exempt from execution. In default 
of entering into such undertaking he may be committed to prison. 

After the issuing of an execution against property, and before its 
return, any person indebted to the judgment debtor may pay to the 
Sheriff the amount of his debt, or so much thereof as may be neces- 
sary to satisfy the execution ; and the Sheriff's receipt is a sufficient 
discharge for the amount so paid. 

After the issuing or return of an execution against property of the 
judgment debtor, or of any one of several debtors in the same judg- 
ment, or upon proof, by affidavit or otherwise, to the satisfaction of 
the Judge, that any person or corporation has property of such 
judgment debtor, or is indebted to him in an amount exceeding fifty 
dollars, the Judge may, by an order, require such person or corpora- 
tion, or any officer or member thereof, to appear at a specified time 
and place before him, or a referee appointed by him, and answer 
concerning the same. 

Witnesses may be required to appear and testify before the Judge 
or referee. The Judge or referee may order any property of a judg- 
ment debtor, not exempt from execution, in the hands of such debtor 
or any other person, or due to the judgment debtor, to be applied 
toward the satisfaction of the judgment. 

If it appear that a person or corporation, alleged to have property 
of the judgment debtor, or to be indebted to him, claims an interest 
in the property adverse to him, or denies the debt, the Court or a 
Judge may authorize, by an order made to that effect, the judgment 
creditor to institute an action against such person or corporation for 
the recovery of such interest or debt ; and the Court or Judge may, 
by order, forbid a transfer or other disposition of such interest or 
debt, until an action can be commenced and prosecuted to judgment. 

If any person, party, or witness disobey an order of the referee, 
properly made, in proceedings before him, he may be punished by 
the Court or Judge ordering the reference, for a contempt. 



Chap. 14.] CALIFORNIA. 69 

CHAPTER XIV. 

COSTS. 

The general rule is, that judgment carries costs. 

When, in an action for the recovery of money only, the defendant 
alleges in his answer that before the commencement of the action he 
tendered to the plaintiff the full amount to which he was entitled, 
and thereupon deposits in Court for the plaintiff the amount so ten- 
dered, and the allegation be found to be true, the plaintiff cannot 
recover costs, but must pay costs to the defendant. 

When several actions are brought on one bond, undertaking, 
promissory note, bill of exchange, or other instrument in writing, or 
in any other case for the same cause of action, against several par- 
ties who might have been joined as defendants in the same action, 
no costs can be allowed to the plaintiffs in more than one of such 
actions, which may be at his election, if the parties proceeded 
against in the other actions were, at the commencement of the pre- 
vious action, openly within this State ; but the disbursements of the 
plaintiff must be allowed to him in each action. 

Security for Costs. 

When the plaintiff in an action resides out of the State, or is a 
foreign corporation, security for the costs and charges, which may 
be awarded against such plaintiff, may be required by the defendant. 
When required all proceedings in the action must be stayed until an 
undertaking, executed by two or more persons, is filed with the 
Clerk, to the effect that they will pay such costs and charges as may 
be awarded against the plaintiff by judgment, or in the progress of 
the action, not exceeding the sum of three hundred dollars. A new 
or additional undertaking may be ordered by the Court or Judge, 
upon proof that the original undertaking is insufficient security, and 
proceedings in the action stayed until such new or additional under- 
taking is executed and filed. If such security is not given by the 
plaintiff within thirty days after notice that security is required, the 
Court or Judge may order the action dismissed. 



70 CALIFORNIA. [Part 3. 

CHAPTER XV. 

APPEALS IN CIVIL ACTIONS. 

Appeals in General. 

Within what time appeals may be taken : 

1. From a final judgment in an action or special proceeding com- 
menced in the Court in which the same is rendered, within one year 
after the entry of judgment. But an exception to the decision or 
verdict, on the ground that it is not supported by the evidence, can- 
not be reviewed on an appeal from the judgment, unless the appeal 
is taken within sixty days after the rendition of the judgment, 

2. From a judgment rendered on an appeal from an inferior Court, 
within ninety days after the entry of such judgment, 

3. From an order granting or refusing a new trial; from an order 
granting or dissolving an injunction ; from an order refusing to grant 
or dissolve an injunction ; from an order dissolving or refusing to 
dissolve an attachment ; from an order granting or refusing to grant 
a change of the place of trial ; from any special order made after the 
final judgment, and from an interlocutory judgment in actions for 
partition of real property, within sixty days after the order or in- 
terlocutory judgment is made and entered in the minutes of the 
Court, or filed with the Clerk. 

An appeal is taken by filing, with the Clerk of the Court in which 
the judgment or order appealed from is entered, a notice stating the 
appeal from the same, or some specific part thereof, and serving a 
similar notice on the adverse party or his attorney. The order of 
service is immaterial ; but the appeal is ineffectual for any purpose 
unless, within five days after service of the notice of appeal, an un- 
dertaking be filed, or a deposit of money be made with the Clerk, as 
hereinafter provided, or the undertaking be waived by the adverse 
party in writing. 

The undertaking on appeal must be in writing, and must be exe- 
cuted on the part of the appellant by at least two sureties, to the ef- 



Chap. 15.] CALIFORNIA. 71 

feet that the appellant will pay all damages and costs which may be 
awarded against him on the appeal, or on a dismissal thereof, not ex- 
ceeding three hundred dollars ; or that sum must be deposited with 
the Clerk with whom the judgment or order was entered, to abide 
the event of the appeal. 

If the appeal be from a judgment or order directing the payment 
of money, it does not stay the execution of the judgment or order, 
unless a written undertaking be executed on the part of the appel- 
lant, by two or more sureties, to the effect that they are bound in 
double the amount named in the judgment or order; that if the judg- 
ment or order appealed from, or any part thereof, be affirmed, or the 
appeal be dismissed, the appellant will pay the amount directed to 
be paid by the judgment or order ; or the part of such amount as to 
which the judgment or order is affirmed, if affirmed only in part; and 
all damages and costs which may be awarded against the appellant 
upon the appeal. And that if the appellant does not make such pay- 
ment, within thirty days after the filing of the remittitur from the 
Supreme Court, in the Court from which the appeal is taken, judg- 
ment may be entered on motion of the respondent in his favor against 
the sureties, for such amount, together with the interest that may be 
due thereon, and the damages and costs which may be awarded 
against the appellant upon the appeal. If the judgment or order 
appealed from be for a greater amount than two thousand dollars, 
and the sureties do not state in their affidavits of justification accom- 
panying the undertaking, that they are each worth the sum specified 
in the undertaking, the stipulation may be that the judgment to be 
entered against the sureties shall be for such amounts only as in their 
affidavits they may state that they are severally worth, and judgment 
may be entered against the sureties by the Court from which the 
appeal is taken, pursuant to the stipulations therein designated. 
When the judgment, or order, appealed from is made payable in a 
specified kind of money or currency, the judgment entered against 
the sureties upon the undertaking, must be made payable in the 
same kind of money or currency. 

When an appeal is perfected, it stays all further proceedings in 
the Court below, upon the judgment or order appealed from, or upon 
the matters embraced therein, and releases from levy property which 
has been levied upon under execution issued upon such judgment. 



72 California. [Part 3. 

The adverse party may except to the sufficiency of the sureties to 
the undertaking 011 appeal. 

The foregoing provisions in regard to appeals do not apply to ap- 
peals to the Superior Court from Justices' or Police Courts. 

Appeals from Superior Courts. 

An appeal may be taken to the Supreme Court from a Superior 
Court, in the following cases : 

1. From a final judgment entered in an action, or special proceed- 
ing commenced in a Superior Court from another Court. 

2. From an order granting or refusing a new trial ; or granting 
or dissolving an injunction ; or refusing to grant or dissolve an in- 
junction ; or dissolving or refusing to dissolve an attachment ; or 
changing, or refusing to change the place of trial from any special 
order made after final judgment ; and from such interlocutory judg- 
ment in such actions for partition as determines the rights and inter- 
ests of the respective parties, and directs partition to be made. 

3". From a judgment or order granting, refusing, or revoking let- 
ters testamentary, or of administration, or of guardianship ; or 
admitting, or refusing to admit a will to probate ; or against or in 
favor of the validity of a will, or revoking the probate thereof ; 
or against or in favor of setting apart property, or making an al- 
lowance for a widow or a child ; or against or in favor of di- 
recting the partition, sale, or conveyance of real property ; or 
settling an account of an executor, or administrator, or guardian ; 
or refusing, allowing, or directing the distribution or partition 
of an estate, or any part thereof; or the payment of a debt, claim, 
legacy, or distributive share ; or confirming, or refusing to confirm 
a report of an appraiser setting apart the homestead. 

The foregoing does not apply in cases appealed from Justices,' Po- 
lice, or other inferior Courts, except cases of forcible entry and de- 
tainer, and cases involving the legality of any tax, impost, assess- 
ment, toll, or municipal fine ; or in which the demand, exclusive of 
interest or the value of the property in controversy, amounts to 
three hundred dollars. 

Appeals from Justices' or Police Courts. 

Any party dissatisfied with a judgment rendered in a. civil action 



Chap. 15.] CALIFORNIA. 73 

in a Police or a Justice's Court, may appeal therefrom to the Supe- 
rior Court of the county, at any time within thirty days after the 
rendition of the judgment. 

Parties appealing on questions of law alone, must, within ten days 
from rendition of judgment, prepare a statement of the case, and file 
the same with the Justice or Judge. When the appeal is taken on 
questions of fact, or questions of both law and fact, no statement 
need be made, but the action must be tried anew in the Superior 
Court. 

An appeal from a Justice's or Police Court is not effectual for 
any purpose, unless an undertaking be filed, with two or more sure- 
ties, in the sum of one hundred dollars, for the payment of the costs 
on the appeal ; or if a stay of the proceedings be claimed, in a sum 
equal to twice the amount of the judgment, including costs, when 
the judgment is for the payment of money ; or twice the value of 
the property, including costs, when the judgment is for the recovery 
of specific personal property ; and must be conditioned, when the 
action is for the recovery of money, that the appellant will pay the 
amount of the judgment appealed from, and all costs, if the appeal 
be withdrawn or dismissed, or the amount of any judgment and all 
costs that may be recovered against him in the Superior Court. 
When the action is for the recovery, or to enforce or foreclose a lien 
on specific personal property, the undertaking must be conditioned 
that the appellant will pay the judgment and costs appealed 
from, and obey the order of the Court made therein, if the appeal 
be withdrawn or dismissed, or any judgment and costs that may be 
recovered against him in said action in the Superior Court, and will 
obey any order made by the Court therein. When the judgment 
appealed from directs the delivery of possession of real property, the 
execution of the same cannot be stayed unless a written undertaking 
be executed on the part of the appellant, with two or more sureties, 
to the effect that during the possession of such property by the ap- 
pellant he will not commit, or suffer to be committed, any waste 
thereon ; and that if the appeal be dismissed or withdrawn, or the 
judgment affirmed, or judgment be recovered against him in the 
action in the Superior Court, he will pay the value of the use and 
occupation of the property, from the time of the appeal until the 



74 t California. [Part 3. 

delivery of possession thereof, or that he will pay any judgment and 
costs that may be recovered against him in said action in the Supe- 
rior Court, not exceeding a sum to be fixed by the Justice of the 
Court from which the appeal is taken, and which sum must be spec- 
ified in the undertaking. A. deposit of the amount of the judgment, 
including all costs, appealed from, or of the value of the property, 
including all costs, in actions for the recovery of specific personal 
property, with the Justice or Judge, is equivalent to the filing of the 
undertaking. The adverse party may except to the sufficiency of 
the sureties within five days after the filing of the undertaking, 
and unless they or other sureties justify before the Justice or Judge, 
within five days thereafter, upon notice to the adverse party, to the 
amounts stated in their affidavits, the appeal must be regarded as if 
no such undertaking had been given. 

On filing the above undertaking, execution must be stayed. For 
a failure to prosecute an appeal, or unnecessary delay in bringing it 
to a hearing, the Superior Court, after notice, may order the appeal 
to be dismissed, with costs ; and if it appear to such Court that the 
appeal Avas made solely for delay, it may add to the costs such dam- 
ages as may be just, not exceeding twenty-five per cent, of the judg- 
ment appealed from. 



Chap. 16.] CALIFORNIA. 75 

CHAPTER XVI. 

NEW TRIALS. 

A new trial may be granted for any of the following causes, mate- 
rially affecting the substantial rights of the party aggrieved : 

1. Irregularity in the proceedings of the Court, jury, or adverse 
party, or any order of the Court, or abuse of discretion, by which 
either party was prevented from having a- fair trial. 

2. Misconduct of the jury; and whenever any one or more of the 
jurors have been induced to assent to any general or special verdict, 
or to finding on any question submitted to them by the Court by a 
resort to the determination of chance, such misconduct may be proved 
by the affidavit of any one of the jurors. 

3. Accident or surprise, which ordinary prudence could not have 
guarded against. 

4. Newly discovered evidence, material for the party making the 
application, which he could not, with reasonable diligence, have dis- 
covered and produced at the trial. 

5. Excessive damages, appearing to have been given under the in- 
fluence of passion or prejudice. 

6. Insufficiency of the evidence to justify the verdict or other de- 
cision, or that it is against law. 

7. Error in law occurring at the trial and excepted to by the party 
making the application. 

The party intending to move for a new trial must, within ten 
days after the verdict, if the action were tried by a jury, or after 
notice of the decision of the Court or referee, if the action were 
tried without a jury, file with the Clerk and serve upon the adverse 
party a notice of his intention, designating the ground upon which 
the motion will be made. 



76 California. [Part 3. 

CHAPTER XVII. 

ESTATES OF DECEASED PERSONS. 

In what county wills must be proved and letters testamentary or 
of administration granted : 

1 . In the county of which the deceased was a resident at the time 
of his death, in whatever place he may have died. 

2. In the county in which the deceased may have died, leaving 
estate therein, he not being a resident of the State. 

3. In the county in which any part of the estate may be, the de- 
ceased having died out of the State and not resident therein at the 
time of his death. 

4. In the county in which any part of the estate may be, the de- 
ceased not being a resident of the State, and not leaving estate in 
the county in which he died. 

5. In all other cases, in the county where application for letters 
is first made. 

Order of persons entitled to administer : 

1. The surviving husband or wife, or some competent person 
whom he or she may request to have appointed. 

2. The children. 

3. The father or mother. 

4. The brothers. 

5. The sisters. 

6. The grandchildren. 

7. The next of kin entitled to share in the distribution of the 
estate. 

8. The Public Administrator. 

9. The creditors. 

10. Any person legally competent. 

Administration may be granted to one or more competent per- 
sons, although not otherwise entitled to the same, at the written re- 
quest of the person entitled, filed in the Court. 



Chap. 17.] CALIFORNIA. 77 

No person is competent or entitled to serve as administrator 
who is — 

1st. Under the age of majority. 

2d. Not a bona fide resident of the State. 

3d. Convicted of an infamous crime. 

4th. Adjudged by the Court incompetent to execute the duties of 
the trust by reason of drunkenness, improvidence, or want of under- 
standing or integrity. 

If the deceased was a member of a partnership at the time of his 
decease, the surviving partner must in no case be appointed adminis- 
trator of his estate. 

A married woman must not be appointed administratrix. 

Letters of administration must be granted to any applicant, though 
it appears that there are other persons having better rights to the 
administration, when such persons fail to appear and claim the issu- 
ing of letters to themselves. 

The administrator must give bonds, with two or more sufficient 
sureties, to be approved by the Superior Judge, the penalty to be 
not less than twice the value of the personal property, and twice the 
probable value of the annual rents, profits and issues of the real 
property ; additional bonds may be required when a sale of real es- 
tate is ordered. 

When a person dies leaving a widow or minor children, the widow 
or minor children, until'letters are granted and the inventory is re- 
turned, are entitled to remain in possession of the homestead, of the 
wearing apparel of the family, and of all the household furniture of 
the decedent, and are also entitled to a reasonable provision for 
their support, to be allowed by the Superior Court or a Judge 
thereof. 

The Court may set apart for the use of the surviving husband or 
wife, or in case of his or her death, to the minor children of the de- 
cedent, all property exempt from execution, including the homestead 
selected, designated and recorded ; provided, such homestead was se- 
lected from the common property, or from the separate property, of 
the persons selecting or joining in the selection of the same. If 
none has been selected, designated and recorded, or in case the 
homestead was selected by the survivor out of the separate property 
of the decedent, the decedent not having joined therein, the Court 



78 California. [Part 3. 

must select, designate and set apart, and cause to be recorded, a 
homestead for the use of the surviving husband or wife aud the 
minor children ; or if there be no surviving husband or wife, then 
for the use of the minor children, out of the common property, or if 
there be no common property, then out of the real estate belong- 
ing to the decedent. 

If the amount set apart be insufficient for the support of the 
widow and children, or either, the Superior Court or Judge must make 
such reasonable allowance out of the estate as shall be necessary for 
the maintenance of the family, according to their circumstances, dur- 
ing the progress of the settlement of the estate ; which, in case of 
an insolvent estate, must not be longer than one year after granting 
of letters. 

If on the return of the inventory of the estate of an intestate, it 
appears that the value of the whole estate does not exceed the sum 
of fifteen hundred dollars , and if there be a widow or minor chil- 
dren of deceased, the Court, or a Judge thereof, shall, by order, re- 
quire all persons interested to appear on a day fixed and show cause 
why the whole estate should not be assigned for the use of the fam- 
ily of deceased, after the payment of the expenses of the last illness, 
funeral expenses, and expenses of administration. 

If it appear that the value of the whole estate does not exceed 
the sum of three thousand dollars, there may be a summary admin- 
istration of the estate, and an order of distribution at the end of six 
months after the issuing of letters. 

Claims against the estate must be presented to the executor or 
administrator within the time specified in the notice to creditors, re- 
questing them to present their claims ; when the value of the estate 
exceeds ten thousand dollars, the time expressed in the notice must 
be ten months ; when it does not exceed ten thousand dollars, four 
months. 

All claims -arising upon contracts, Avhether the same be due, not 
due, or contingent, must be presented within the time limited in the 
notice, and any claim not so presented is barred forever ; provided, 
however, that when it is made to appear by the affidavit of the claim- 
ant, to the satisfaction of the Court, or a Judge thereof, that the 
claimant had no notice as provided in this chapter, by reason of 
being out of the State, it may be presented at any time before a de- 
cree of distribution is entered. 



Chap. 17.] CALIFORNIA. 79 

Every claim which is due, when presented to the executor or ad- 
ministrator, must be supported by the affidavit of the claimant, or 
some one in his behalf, that the amount is justly due, that no pay- 
ments have been made thereon which are not credited, and that 
there are no offsets to the same, to the knowledge of the affiant. If 
the claim be not due when presented, or be contingent, the particu- 
lars of such claim must be stated. When the affidavit is made by a 
person other than the claimant, he must set forth in the affidavit the 
reason why it is not made by the claimant. The oath may be taken 
before any officer authorized to administer oaths. The executor or 
administrator may also require satisfactory vouchers or proofs to be 
produced in support of the claim. If the estate be insolvent, no 
greater rate of interest shall be allowed upon any claim after the first 
publication of notice to creditors than is allowed on judgments ob- 
tained in the Superior Court. 

Any Judge of a Superior Court may present a claim against the 
estate of a decedent for allowance to the executor or administrator 
thereof, and if the executor or administrator allows the claim, 
he must in writing designate some other Judge of the Superior 
Court of the same or an adjoining county, who, upon the presenta- 
tion of such claim to him, is vested with power to allow or reject it, 
and the Judge presenting such claim, in case of its rejection by the 
executor or administrator, or by such Judge as shall have acted upon 
it, has the same right to sue in a proper Court for its recovery as 
other persons have when their claims against an estate are rejected. 

When a claim, accompanied by the affidavit required in this chap- 
ter, is presented to the executor or administrator, he must indorse 
thereon his allowance or rejection, with the day and date thereof. 
If he allow the claim, it must be presented to a Judge of the Supe- 
rior Court for his approval, who must in the same manner indorse 
upon it his allowance or rejection. If the executor or administrator, 
or the Judge, refuse or neglect to indorse such allowance or rejection 
for ten days after the claim has been presented to him, such refusal 
or neglect may, at the option of the claimant, be deemed equivalent 
to a rejection on the tenth day; and if the presentation be made by 
a Notary, the certificate of such Notary, under seal, shall be prima 
facie evidence of such presentation and the date thereof. If the 
claim be presented to the executor or administrator before the expi- 



80 CALIFORNIA. [Part 3. 

ration of the time limited for the presentation of claims, the same 
is presented in time, though acted upon by the executor or adminis- 
trator, and by the Judge, after the expiration of such time. If the 
claim be i^ayable in a particular kind of money or currency, it shall, 
if allowed, be payable only in such money or currency. 

Every claim allowed by the executor or administrator, and ap- 
proved by a Judge of the Superior Court, or a copy thereof, as here- 
inafter provided, must, within thirty days thereafter, be filed in the 
Court, and be ranked among the acknowledged debts of the estate, to 
be paid in due course of administration. If the claim be founded on 
a bond, bill, note, or any other instrument, a copy of such instru- 
ment must accompany the claim, and the original instrument must 
be exhibited, if demanded, unless it be lost or destroyed, in which 
case the claimant must accompany his claim by his affidavit, contain- 
ing a copy or particular description of such instrument, and stating 
its loss or destruction. If the claim, or any part thereof, be secured 
by a mortgage or other lien which has been recorded in the office of 
the Recorder of the county in which the land affected by it lies, it 
shall be sufficient to describe the mortgage or lien, and refer to the 
date, volume, and page of its record. If, in any case, the claimant 
has left any original voucher in the hands of the executor or admin- 
istrator, or suffered the same to be filed in Court, he may withdraw 
the same when a copy thereof has been already, or is then, attached 
to his claim. A brief description of every claim filed must be en- 
tered by the Clerk in the register, showing the name of the claim- 
ant, the amount and character of the claim, rate of interest, and date 
of allowance. 

When a claim is rejected either by the executor or administrator, 
or a Judge of the Superior Court, the holder must bring suit in the 
proper Court against the executor or administrator within three 
months after the date of its rejection, if it be themdue, or within 
two months after it becomes due, otherwise the claim shall be for- 
ever barred. 

No claim must be allowed by the executor or administrator ; or 
by a Judge of the Superior Court, which is barred by the statute of 
limitations. When a claim is presented to a Judge for his allow- 
ance, he may, in his discretion, examine the claimant and others on 
oath, and hear any legal evidence touching the validity of the claim. 



Chap. 17.] CALIFORNIA. 81 

Whenever any claim is presented to an executor or administra- 
tor, or to a Judge, and lie is willing to allow the same in part, he 
must state in his indorsement the amount he is willing to allow. 
If the creditor refuse to accept the amount allowed in satisfaction of 
his claim, he shall recover no costs in any action therefor brought 
against the executor or administrator, unless he recover a greater 
amount than that offered to be allowed. 

A judgment rendered against an executor or administrator, upon 
any claim for money against the estate of his testator or intestate, 
only establishes the claim in the same manner as if it had been al- 
lowed by the executor or administrator and a Judge ; and the judg- 
ment must be that the executor or administrator pay, in due course 
of administration, the amount ascertained to be due. A certified 
transcript of the original docket of the judgment must be filed 
among the papers of the estate in Court. No execution must issue 
upon such judgment, nor shall it create any lien upon the property 
of the estate, or give to the judgment creditor any priority of 
payment. 

Six months after his appointment, and at any time when required 
by the Court, either upon its own motion or upon the application of 
any person interested in the estate, the executor or administrator 
must render, for the information of the Court, an exhibit under 
oath, showing the amount of money received and expended by him, 
the amount of all claims presented against the estate, and the names 
of the claimants, and all other matters necessary to the condition of 
its affairs. 

Every executor or administrator must render a full account and 
a report of his administration at the expiration of one year from 
the time of his appointment. 

Upon the settlement of the accounts at the end of the year, as 
required, the Court must make an order for the payment of the 
debts, as the circumstances of the estate require. 

In case of the death of any employer, the wages of each miner, 
mechanic, salesman, clerk, servant and laborer, for services rendered 
within the sixty days next preceding the death of the employer, not 
exceeding one hundred dollars, rank in priority next after the fune- 
ral expenses, expenses of the last sickness, the charges and expenses 
of administering upon the estate, and the allowance to the widow 



82 California. [Part 3. 

and infant children, and must be paid before other claims against 
the estate of the deceased person. 

The debts, of the estate, subject to the foregoing provision, must 
be paid in the following order : 

1. Funeral expenses. 

2. The expenses of the last sickness. 

3. Debts having preference by the laws of the United States. 

4. Judgments rendered against the decedent in his lifetime, and 
mortgages in the order of their date. 

5. All other demands against the estate. 

The preference in the case of a mortgage only extends to the pro- 
ceeds of the property mortgaged. The deficiency, if any, must be 
classed with the other demands against the estate. 

Compensation to Executors and Administrators. 

When no compensation is provided by the will, or the executor 
renounces all claim thereto, he must be allowed commission upon the 
amount of the whole estate accounted for by him as follows : on first 
81,000 seven per cent., above that sum and not exceeding $10,000 
five per cent, on all above that sum four per cent. 

Same compensation allowed to administrators. 



Chap. 18.] California. 83 

CHAPTER XVIII. 

SUCCESSION. 

The property, both real and personal, of one who dies without 
disposing of it by will, passes to the heirs of the intestate subject to 
the control of the Probate Court, and to the possession of any ad- 
ministrator appointed by that Court for the purpose of administra- 
tion. 

When any person having title to any estate not otherwise limited 
by marriage contract dies, without disposing of the estate by will, it 
is succeeded to, and must be distributed, subject to the payment of 
his debts, in the following manner — 

1. If the decedent, leave a surviving husband or wife, and only 
one child, or the lawful issue of one child, in equal shares to the 
surviving husband or wife and child, or issue of such child. If the 
decedent leave a surviving husband or wife, and more than one 
child living, or one child living and the lawful issue of one or more 
deceased children, one-third to the surviving husband or wife, and 
the remainder in equal shares to his children, and to the lawful issue 
of any deceased child by right of representation ; but if there be no 
child of the decedent living at his death, the remainder goes to all 
of his lineal descendants ; and if all of the descendants are in the 
same degree of kindred to the decedent, they share equally ; other- 
wise they take according to the right of representation. If the decedent 
leave no surviving husband or wife, but leave issue, the whole estate 
goes to such issue ; and if such issue consists of more than one child 
living, or one child living and the lawful issue of one or more de- 
ceased children, then the estate goes in equal shares to the children 
living, or to the child living, and the issue of the deceased child or 
children by right of representation ; 

2. If the decedent leave no issue, the estate goes, one half to the 
surviving husband or wife and the other half to the decedent's 
father and mother, in equal shares, and if either be dead, the whole 
of said half goes to the other ; if there be no father or mother, then 



84 California. [Part 3. 

one half goes in equal shares to the brothers and sisters of the de- 
cedent, and to the children of any deceased brother or sister by right 
of representation. If the decedent leave no issue, nor husband, nor 
wife, the estate must go to his father and mother, in equal shares, or 
if either be dead, then to the other. 

3. If there be neither issue, husband, wife, father nor mother, 
then in equal shares to the brothers and sisters of the decedent, and 
to the children of any deceased brother or sister by right of repre- 
sentation. 

5. If the decedent leave a surviving husband or wife, and neither 
issue, father, mother, brother, nor sister, the whole estate goes to the 
surviving husband or wife. 

6. If the decedent leave neither issue, husband, wife, father, 
mother, brother, nor sister, the estate must go to the next of kin in 
equal degree, excepting that when there are two or more collateral 
kindred in equal degree, but claiming through different ancestors, 
those who claimed through the nearest ancestors must be preferred 
to those claiming through an ancestor more remote. 

7. If the decedent leave several children, or one child, and the 
issue of one or more children, and any such surviving child dies 
under age, and not having been married, all the estate that came 
to the deceased child by inheritance from such decedent, descends in 
equal shares to the other children of the same parent, and to the 
issue of any such other children who are dead, by right of repre- 
sentation. 

8. If at the death of such child, who dies under age, not having 
been married, all the other children of his parents are also dead, and 
any of them have left issue, the estate that came to such child by 
inheritance from his parents decends to the issue of all other chil- 
dren of the same parent ; and if all the issue are in the same degree 
of kindred to the child, they share the estate equally, otherwise they 
take according to the right of representation. 

9. If the decedent be a widow or widower, and leave no kindred, 
and the estate, or any portion thereof, was common property of such 
decedent, and his or her deceased spouse, while such spouse was living, 
such common property shall go the father of such deceased spouse, 
or if he be dead, to the mother. If there be no father nor mother, 
then such property shall go the brothers and sisters of such deceased 



Chap. 18.] CALIFORNIA. 85 

spouse, in equal shares, and to the lawful issue of any deceased 
brother or sister of such deceased spouse, by right of representation. 

10. If the decedent have no husband, wife or kindred, and there 
be no heirs to take his estate, or any portion thereof, under subdi- 
vision nine of this section, the same escheats to the State for the 
support of common schools. 

The above provisions, as to the inheritance of the husband and 
wife from each other, apply only to the separate property of the 
decedents. 

Upon the death of the wife, the entire community property, with- 
out administration, belongs to the surviving husband, except such 
portion thereof as may have been set apart to her by judicial decree, 
for her support and maintenance, which portion is subject to her 
testamentary disposition, and in the absence of such disjDosition 
goes to her descendants or heirs, exclusive of her husband. 

Upon the death of the husband, one-half of the community prop- 
erty goes to the surviving wife, and the other half is subject to the 
testamentary disposition of the husband, and in the absence of such 
disposition goes to his descendants, equally, if such descendants are in 
the same degree of kindred to the decedent; otherwise, according 
to the right of representation; and in the absence of both such dis- 
positions, and such descendants, is subject to distribution in the 
same manner as the separate property of the husband. In case of 
the dissolution of the community by the death of the husband, the 
entire community property is equally subject to his debts, the family 
allowance, and the charges and expenses of administration. 

Every illegitimate child is an heir of the person who, in writing, 
signed in the presence of a competent witness, acknowledges himself 
to be the father of such child ; and in all cases is an heir of his 
mother ; and inherits his or her estate, in whole or in part, as the 
case may be, in the same manner as if he had been born in lawful 
wedlock ; but he does not represent his father or mother by inherit- 
ing any part of the estate of his or her kindred, either lineal or col- 
lateral, unless, before his death, his parents shall have intermarried, 
and his father, after such marriage, acknowledges him as his child, 
or adopts him into his family ; in which case such child and all the 
legitimate children are considered brothers and sisters, and on the 
death of either of them intestate, and without issue, the others in- 



86 California. [Part 3. 

herit his estate, and are heirs, as hereinbefore provided, in like man- 
ner as if all the children had been legitimate; saving to the father and 
mother, respectively, their rights in the estates of all the children in 
like manner as if all had been legitimate. The issue of all marriages 
null in law, or dissolved by divorce, are legitimate. 

If an illegitimate child, who has not been acknowledged or adopted 
by his father, dies intestate, without lawful issue, his estate goes to 
his mother, or in case of her decease, to her heirs at law. 



CHAPTER XIX. 



LIENS OF MECHANICS AND OTHERS UPON REAL 

PROPERTY. 

Mechanics, material-men, artisans, architects, and laborers of every 
class, performing labor upon, or furnishing material to be used in 
the construction, alteration, or repair of any mining-claim, building, 
wharf, bridge, ditch, flume, aqueduct, tunnel, fence, machinery, 
railroad, wagon-road, or other structure, shall have a lien upon the 
property upon which they have bestowed labor, or furnished mate- 
rial, for the value of such labor done and material furnished. This 
lien shall not be affected by the fact that no money is due, or to be- 
come due, or any contract made by the owner with any party. 

The land upon which any building, improvement, or structure is 
constructed, together with a convenient space about the same, or 
so much as may be required for the convenient use and occupation 
thereof, to be determined by the Court on rendering judgment, is 
also subject to the lien, if, at the commencement of the work, or of 
the furnishing of the materials for the same, the land belonged to the 
person who caused said building, improvement, or structure to be 
constructed, altered, or repaired ; but if such person owned less than 



Chap. 19.] CALIFORNIA. 87 

a fee simple estate in such land, then only his interest therein is sub- 
ject to such lien. 

Improvements are held to be constructed at the instance of the 
owner of the lands, unless he, within three days after he shall have 
received knowledge of the construction, alteration, or repair, or in- 
tended construction, alteration, or repair, give notice that he will 
not be responsible for the same, by posting a notice in writing on 
the premises, in a conspicuous place, to that effect. 

Such liens are preferred to any lien, mortgage or other incum- 
brance which may have attached subsequent to the time when the 
building, improvement or structure was commenced, work done, or 
materials were commenced to be furnished ; also, to any lien, mort- 
gage or other incumbrance, of which the lien-holder had no notice, 
and which was unrecorded at the time the building, improvement or 
structure was commenced, work done, or the materials were com- 
menced to be furnished. 

Every original contractor, within sixty days after the completion 
of his contract, and every person, save the original contractor, claim- 
ing the benefit of this chapter, must, within thirty days after the 
completion of any building, improvement or structure, or after the 
completion of the alteration, or repair thereof, or the performance of 
any labor in a mining claim, file for record with the County Re- 
corder of the county in which such property, or some part thereof, 
is situated, a claim containing a statement of his demand, after de- 
ducting all just credits and offsets, with the name of the owner, or 
reputed owner, if known, and also the name of the person by whom 
he was employed, or to whom he furnished the materials, with a 
statement of the terms, time given, and conditions of his contract, 
and also a description of the property to be charged with the lien, 
sufficient for identification, which claim must be verified by the oath 
of himself or of some other person. 

The lien does not bind any building, mining claim, improvement 
or structure, for a longer period than ninety days after the same has 
been filed, unless proceedings be commenced in a proper Court 
within that time to enfore the same ; or if a credit be given, then 
ninety days after the expiration of such credit ; but no lien contin- 
ues in force for a longer time than two years from the time the 
work is completed, by an agreement to give credit. 



88 California. [Part 3. 

In every case in which different liens are asserted against any 
property, the Court in the judgment must declare the rank of each 
lien or class of liens, which shall be in the following order, viz : 
First — all persons other than the original contractors and sub-con- 
tractors. Second — the subcontractors. Third — the original con- 
tractors. And the proceeds of the sale of the property must be ap- 
plied to each lien, or class of liens, in the order of its rank ; and 
whenever, on the sale of the property subject to the lien, there is a 
deficiency of proceeds, judgment may be docketed for the deficiency. 

Any number of persons claiming liens may join in the same ac- 
tion, and when separate actions are commenced the Court may con- 
solidate them. The Court may also allow as part of the costs, the 
moneys paid for filing and recording the lien, and reasonable attorney's 
fees in the Superior and Supreme Courts. Whenever materials 
shall have been furnished for use in the construction, alteration, or 
repair of any building or other improvement, such materials shall 
not be subject to attachment, execution, or other legal process, to 
enforce any debt due by the purchaser of such materials, except a 
debt due for the purchase money thereof, so long as in good faith the 
same are about to be applied to the construction, alteration, or re- 
pair of such building, mining claim, or other improvement. 

In a judgment enforcing a mechanic's lien, a personal judgment 
cannot be rendered against those defendants against whom no per- 
sonal claim is established. 



Chap. 20.] California. 89 



CHAPTER XX. 

LIENS FOR SALARIES AND WAGES AND OTHER 

LIENS. 



In all assignments of property, made by any person to trustees 
or assignees, on account of the inability of the person, at the time 
of the assignment, to pay his debts, or in proceedings in insolvency, 
the wages of the miners, mechanics, salesmen, servants, clerks or 
laborers employed by such person, to the amount of one hundred 
dollars each, and for services rendered within sixty days previously, 
are preferred claims, and must be paid by such trustees or assignees 
before any other creditor or creditors of the assignor. 

In case of the death of any employer, the wages of each miner, 
mechanic, salesman, clerk, servant and laborer, for services rendered 
within the sixty days next preceding the death of the employer, not 
exceeding one hundred dollars, rank in priority next after the funeral 
expenses, expenses of the last sickness, the charges and expenses of 
administering upon the estate, and the allowance to the widow and 
infant children, and must be paid before other claims against the es- 
tate of the deceased person. 

In cases of execution, attachments, and writs of a similar nature, 
issued against any person, except for claims for labor done, any 
miners, mechanics, salesmen, servants, clerks and laborers, who 
have claims against the defendant for labor done, may give notice of 
their claims and the amount thereof, sworn to by the person making 
the claim, to the creditor and the officer executing either of such 
writs, at any time before the actual sale of the property levied upon ; 
and unless such claim is disputed by the debtor or a creditor, such 
officer must pay to such person, -out of the proceeds of the sale, the 
amount each is entitled to receive for such services rendered within 
the sixty days next preceding the levy of the writ, not exceeding 
one hundred dollars. If any or all of the claims so presented, and 
claiming preference, are disputed by either the debtor or a creditor, 



90 California. [Part 3. 

the person presenting .the same must commence an action within 
ten days for the recovery thereof, and must prosecute his action with 
due diligence, or be forever barred from any claim of priority of 
payment thereof ; and the officer shall retain possession of so much 
of the proceeds of the sale as may be necessary to satisfy such claim, 
until the determination of such action; and in case judgment be had 
for the claim, or any part thereof, carrying costs, the costs taxable 
therein shall likewise be a preferred claim, with the same rank as 
the original claim. 

Other Liens. 

One who sells personal property, has a special lien thereon, de- 
pendent on possession, for its price, if in his possession, when the 
price becomes payable. 

Every person who, while lawfully in possession of an article of 
personal property, renders any service to the owner thereof by labor 
or skill employed for the protection, improvement, safekeeping, or 
carriage thereof, has a special lien thereon, dependent on possession 
for the compensation, if any, which is due to him from the owner 
for such service; and livery or boarding or feed-stable proprietors, 
and persons pasturing horses and stock, have liens dependent on pos- 
session for their compensation in caring for, boarding, or pasturing 
such horses or stock. 

Any person who makes, alters, or repairs any article of personal 
property, at the request of the owner or legal possessor of the 
property, has a lien on the same for his reasonable charges for work 
done and materials furnished, and may retain possession of the same 
until the charges are paid. 

A factor has a general lien, dependent on possession, for all that 
is due to him as such, upon all articles at commercial value that are 
intrusted to him by the same principal. 

A banker has a general lien, dependent on possession, upon all 
property in his hands belonging to a customer, for the balance due 
to him from such customer in the course of the business. 

Hotel men, boarding-house and lodging-house keepers, have a lien 
on baggage and other property of their guests, dependent on pos- 
ession, for board, lodging, and room rent. 

A person who labors at cutting, hauling, rafting, or driving logs 



Chap. 21.] CALIFORNIA. 91 

or lumber, or who performs any labor in or about a logging-camp, 
necessary for the getting out or transportation of logs or lumber, 
shall have a lien thereon for the amount clue for his personal ser- 
vices, which shall take precedence of all other claims, to continue 
for thirty clays after the logs or lumber arrive at the place of desti- 
nation, for sale or manufacture; suit to foreclose the same shall be 
commenced in the proper Court within twenty-five days from the 
time the same is filed. 



CHAPTER XXI. 

AEBITRATIONS. 



Persons capable of contracting may submit to arbitration any con- 
troversy which might be the subject of a civil action between them, 
except a question of title to real property in fee or for life. 

The submission to arbitration must be in writing, and may be 
made to one or more persons. 



92 California. [Part 3. 

CHAPTER XXII. 

HOMESTEADS. 

The homestead consists of the dwelling-house in which the claim- 
ant resides, and the land on which the same is situated, selected as 
hereinafter provided. It may be used as a place of business, but 
actual residence is essential. 

Homesteads may be selected and claimed : 

1. Not exceeding five thousand dollars in value, by any head of a 
family. 

2. Not exceeding one thousand dollars in value, by any other 
person. 

The phrase " head of a family," includes within its meaning : 

1. The husband, when the claimant is a married person. 

2. Every person who has residing on the premises, with him or 
her, and under his or her care and maintenance, either : 

(1.) His or her minor child, or the minor child of his or her de- 
ceased wife or husband. 

(2.) A minor brother or sister, or the minor child of a deceased 
brother or sister. 

(3.) A father, mother, grandfather, or grandmother. 

(4.) The father, mother, grandfather, or grandmother of a deceased 
husband or wife. 

(5.) An unmarried sister, or any other of the relatives mentioned 
who have attained the age of majority, and are unable to support 
themselves. 

The declaration of homestead must be executed, acknowledged, 
and duly recorded in the office of the Recorder of the county in 
which the land is situated. From and after the time the declara- 
tion is filed for record, the premises therein described constitute a 
homestead. 

The homestead is subject to execution or forced sale, in satisfac- 
tion of judgments obtained : 



Chap. 23.] CALIFORNIA. 93 

1. Before the declaration of homestead was filed for record, and 
which constitute liens upon the premises. 

2. On debts secured by mechanics, laborers, or vendors' liens 
upon the premises. 

3. On debts secured by mortgages upon the premises, executed 
an4 acknowledged by the husband and wife, or an unmarried 
claimant. 

4. On debts secured by mortgages upon the premises, executed 
and recorded before the declaration of homestead was filed for record. 

The homestead of a married person cannot be conveyed or encum- 
bered, unless the instrument is executed and acknowledged by both 
husband and wife. 

If the homestead exceed in value the amount of the homestead 
exemption, the excess may be reached on execution, but the prop- 
erty must first be appraised, upon application to the Superior Judge. 

The homestead may be abandoned by filing in the office where 
the declaration is filed, a declaration of abandonment, duly executed. 



CHAPTER XXIII. 



CORPORATIONS. 

Corporations are either public or private. Public corporations 
are formed or organized for the government of a portion of the 
State ; all other corporations are private. 

. Private corporations may be formed by the voluntary association 
of any five or more persons. A majority of such persons must be 
residents of this State. They may be formed for any purpose for 
which individuals may lawfully associate themselves. 



94 California. [Part 3. 

The owners of shares in a corporation which has a capital stock 
are called stockholders. If a corporation has no capital stock, the 
corporators and their successors are called members. 

Each stockholder of a corporation is individually and personally 
liable for such portions of its debts and liabilities as the amount of 
stock or shares owned by him bears to the whole of the subscribed 
capital stock or shares of the corporation, and for a like proportion 
only of each debt or claim against the corporation. Auy creditor of 
the corporation may institute joint or several actions against any of 
its stockholders, for the proportion of his claim payable by each, and 
in such action the Court must ascertain the proportion of the claim 
or debt for which each defendant is liable, and a several judgment 
must be rendered against each, in conformity therewith. If any 
stockholder pays his proportion of any debt due from the corpora- 
tion, incurred while he was such stockholder, he is relieved from any 
further personal liability for such debt, and if an action has been 
brought against him upon such debt, it shall be dismissed, as to him, 
upon his paying the costs, or such proportion thereof as may be 
properly chargeable against him. The liability of each stockholder 
is determined by the amount of stock or shares owned by him at the 
time the debt or liability was incurred ; and such liability is not 
released by any subsequent transfer of stock. The term stockholder, 
as used in this section, shall apply not only to such persons as ap- 
pear by the books of the corporation to be such, but also to every 
equitable owner of stock, although the same appear on the books in 
the name of another, and also, to every person who has advanced the 
installments or purchase-money of stock in the name of a minor, so 
long as the latter remains a minor; and also, to every guardian, or 
other trustee, who voluntarily invests any trust funds in the stock. 
Trust funds in the hands of a guardian, or trustee, shall not be liable 
under the provisions of this section, by reason of any such invest- 
ment, nor shall the person for whose benefit the investment is made 
be responsible in respect to the stock until he becomes competent 
and able to control the same, but the responsibility of the guardian 
or trustee making the investment shall continue until that period. 
Stock held as collateral security, or by a trustee, or in any other 
representative capacity, does not make the holder thereof a stock- 
holder within the meaning of this section, except in the cases above 



Chap. 2 3. J CALIFORNIA. 95 

mentioned, so as to charge him with any proportion of the debts or 
liahilies of the corporation; but the pledgor, or person, or estate 
represented, is to be deemed the stockholder, as respects such liability. 
In corporations having no capital stock, each member is individually 
and personally liable for his proportion of its debts and liabilities, 
and similar actions may be brought against him, either alone or 
jointly with other members, to enforce such liability, as by this sec- 
tion may be brought against one or more stockholders, and similar 
judgments may be rendered. The liability of each stockholder of a 
corporation formed under the laws of any other State or Territory 
of the United States, or of any foreign country, and doing business 
within this State, shall be the same as the liability of a stockholder 
of a corporation created under the Constitution and laws of this 
State. 

The directors or trustees of corporations and joint-stock associa- 
tions, shall be jointly and severally liable to the creditors and stock- 
holders for all moneys embezzled or misappropriated by the officers 
of such corporation or joint-stock association during the term of office 
of such director or trustee. Contracts to relieve directors or trus- 
tees from this liability are null and void. 

A corporation may be dissolved by the Superior Court of the 
county where its principal place of business is situated, upon its vol- 
untary application for that purpose. 



96 California. [Part 3. 

CHAPTER XXIY. 

MODE OF TAKING TESTIMONY OF WITNESSES. 

The testimony of witnesses is taken in three modes, viz : 

1. By affidavit. 

2. By deposition. 

3. By oral examination. 

An affidavit is a written declaration, under oath, made without 
notice to the adverse party. 

A deposition is a written declaration, under oath, made upon no- 
tice to the adverse party, for the purpose of enabling him to attend 
and cross-examine. 

An oral examination is an examination in presence of the jury 
or tribunal which is to decide the fact, or act upon it ; the testi- 
mony being heard by the jury or tribunal from the lips of the 
witness. 

Depositions must be taken in the form of question and answer, 
and the words of the witness must be written down, unless the par- 
ties agree to a different mode. 

Affidavits are used to verify pleadings, or to prove service of pa- 
pers, and such like. 

Testimony of witnesses out of this State may be taken by deposi- 
tion, at any time after service of summons, or the appearance of the 
defendant. 

Testimony of witnesses in this State may be taken by deposition, 
in any action, at any time after the service of the summons, or the 
appearance of the defendant, in the following cases : 

1. When the witness is a party to the action or proceeding, or an 
officer, or member of a corporation which is a party to the action or 
proceeding, or a person for whose immediate benefit the action or 
proceeding is prosecuted or defended. 

2. WTien the witness resides out of the county in which the testi- 
mony is to be used. 



Chap. 24.] CALIFORNIA. 07 

3. When a witness is about to leave the county where the action 
is to be tried, and will probably continue absent when the testimony 
is required. 

4. When the witness, otherwise liable to attend the trial, is never- 
theless too infirm to attend. 

5. When the testimony is required upon a motion, or in any 
other case where the oral examination of the witness is not re- 
quired. 

6. When the witness is the only one who can establish facts, or a 
fact material to the issue ; provided, that the deposition of such wit- 
ness shall not be used if his presence can be procured at the time of 
the trial of the cause. 

The deposition of a witness out of this State may be taken upon 
commission issued from the Court, under the seal of the Court, upon 
an order of the Court, or a Judge thereof, on the application of 
either party, upon five days previous notice to the other. If issued 
to any place within the United States, it may be directed to a per- 
son agreed upon by the parties, or, if they do not agree, to any 
Judge or Justice of the Peace, or Commissioner, selected by the 
Court or Judge issuing it. If issued to any country out of the 
United States, it may be directed to a Minister, Embassador, Con- 
sul, Vice-Consul, or Consular Agent of the United States in such 
country, or to any person agreed upon by the parties. 

The deposition of a witness in this State may be taken by either 
party before a Judge, or officer authorized to administer oaths, on 
serving upon the adverse party previous notice of the time and place 
of examination, together with a copy of an affidavit, showing that it 
is a case wherein deposition may be used. Such notice must be at 
least five days, adding also one day for every twenty-five miles of 
the distance of the place of examination from the residence of the 
person to whom the notice is given, unless, for a cause shown, a 
Judge, by order, prescribes a shorter time. When a shorter time 
is prescribed, a copy of the order must be served with the notice. 



98 California. [Part 3. 



CHAPTER XXV. 



JUDICIAL RECORDS, HOW PROVED. 



A judicial record is the record or official entry of the proceedings 
in a Court of Justice, or of the official act of a judicial officer, in an 
action or special proceeding. 

A judicial record of this State, or of the United States, may be 
proved by the production of the original, or of a copy thereof, certi- 
fied by the Clerk or other person having the legal custody thereof. 
That of a sister State may be proved by the attestation of the Clerk 
and the seal of the Court annexed, if there be a Clerk and seal, to- 
gether with a certificate of the chief Judge or presiding Magistrate, 
that the attestation is in due form. 

A judicial record of a foreign country may be proved by the 
attestation of the Clerk, with the seal of the Court annexed, if there 
be a Clerk and seal, or of the legal keeper of the record, with the 
seal of his office annexed, if there be a seal, together with a certifi- 
cate of the chief Judge or presiding Magistrate, that the person 
making the attestation is the Clerk of the Court or the legal keeper 
of the record ; and in either case, that the signature of such person 
is genuine, and that the attestation is in due form. The signature 
of the chief Justice or presiding Magistrate must be authenticated 
by the certificate of the Minister or Embassador, or a Consul, Vice- 
Consul, or Consular Agent of the United States in such foreign 
country. 

A copy of the judicial record of a foreign country is also admissi- 
ble in evidence, upon proof — 

1. That the copy offered has been compared by the witness with 
the original, and is an exact transcript of the whole of it ; 

2. That such original was in the custody of the Clerk of the Court, 
or other legal keeper of the same ; and, 



Chap. 26.] California. 99 

3. That the copy is duly attested by a seal, which is proved to be 
the seal of the Court where the record remains, if it be the record of 
a Court ; or if there be no such seal, or if it be not a record of a 
Court, by the signature of the legal keeper of the original. 



CHAPTER XXVI. 

ACKNOWLEDGMENTS. 

The proof or acknowledgment of an instrument may be made at 
any place within this State, before a Justice or Clerk of the Supreme 
Court, or Judge of a Superior Court. 

The proof or acknowledgment of an instrument may be made in 
this State within the city, city and county, county, or district for 
which the officer was elected or appointed, before either — 

1. A Clerk of a Court of Record ; or, 

2. A Court Commissioner ; or, 

3. A County Recorder ; or, 

4. A Notary Public ; or, 

5. A Justice of the Peace. 

The proof or acknowledgment of an instrument may be made 
without this State, but within the United States, and within the ju- 
risdiction of the officer, before either — 

1. A Justice, Judge, or Clerk of any Court of Record of the United 
States ; or, 

2. A Justice, Judge, or Clerk of any Court of Record of any State ; 
or, 

3. A Commissioner appointed by the Governor of this State for 
that purpose \ or, 

4. A Notary Public ; or, 



100 CALIFORNIA. [Part 3. 

5. Any other officer of the State where the acknowledgment is 
made, authorized by its laws, to take such proof or acknowledg- 
ment. 

A proof or acknowledgment of an instrument may be made with- 
out the United States, before either : 

1. A Minister, Commissioner, or Charge d' Affaires of the United 
States, resident and accredited in the country where the proof or 
acknowledgment is made ; or, 

2. A Consul, Vice-Consul, or Consular Agent of the United States, 
resident in the country where the proof or acknowledgment is made ; 
or, 

3. A Judge of a Court of Record of the county where the proof 
or acknowledgment is made ; or, 

4. Commissioners appointed for such purposes by the Governor of 
the State, pursuant to special statutes ; or, 

5. A Notary Public. 

If any of the above-named officers are authorized by law to ap- 
point a deputy, the acknowledgment or proof may be taken by such 
deputy in the name of his principal. 

The acknowledgment of an instrument must not be taken, unless 
the officer taking it knows, or has satisfactory evidence, on the oath 
or affirmation of a credible witness, that the person making such ac- 
knowledgment is the individual who is described in and who exe- 
cuted the instrument ; or if executed by a corporation, that the per- 
son making such acknowledgment is the President or Secretary of 
such corporation. 

The acknowledgment of a married woman to an instrument pur- 
porting to be executed by her must not be taken, unless she is made 
acquainted by the officer with the contents of the instrument, on an 
examination without the hearing of her husband ; nor certified, un- 
less she thereupon acknowledges to the officer that she executed the 
instrument, and that she does not wish to retract such execution. 

General Form of Certificate. 

State of 



County of- 



On this day of , in the year , before me, [here 

insert the name and quality of the officer] personally appeared , 



Chap. 26.] w CALIFORNIA. 101 

known to me, [or proved to me on the oath of ] to be the per- 
son whose name is subscribed to the within instrument, and acknowl- 
edged to me that he [or they] executed the same. 

Form of Certificate of Acknowledgment by Married Woman. 
State of ) 

V gg 

County of j 

On this day of , in the year , before me, [here in- 
sert the name and quality of the officer] personally appeared , 

known to me, [or proved to me on the oath of ] to be the per- 
son whose name is subscribed to the within instrument, described as 
a married woman ; and upon an examination without the hearing of 
her husband, I made her acquainted with the contents of the instru- 
ment ; and thereupon she acknowledged to me that she executed the 
same, and that she does not wish to retract such execution. 

Form of Certificate of Acknowledgment by a Corporation. 
State of I 

V. gg 

County of j 

On this day of , in the year , before me, [here in- 
sert the name and quality of the officer] personally appeared , 

known to me, [or proved to me on the oath of ] to be the 

President [or the Secretary] of the corporation that executed the 
written instrument, and acknowledged to me that such corporation 
executed the same. 

Form of Certificate of Acknowledgment by Attorney in Fact. 



State of- 



County of- 



> ss. 



On this — — day of , in the year , before me [here in- 
sert the name and quality of the officer] personally appeared , 

known to me [or proved to me on the oath of ] to be the per- 
son whose name is subscribed to the within instrument as the attor- 
ney in fact of , and acknowledged to me that he subscribed 

the name of , thereto, as principal, and his own name as attor- 
ney in fact. 

Officers must authenticate their certificates by affixing thereto 



102 CALIFORNIA. [Part 3. 

their signatures, followed by the names of their offices ; also their 
seals of office, if by the laws of the State or country where the ac- 
knowledgment or proof is taken, or by authority of which they are 
acting, they are required to have official seals. 

The certificate of proof or acknowledgment, if made before a Jus- 
tice of the Peace, when used in any county other than that in which 
he resides, must be accompanied by a certificate under the hand and 
seal of the Clerk of the county in which the Justice resides, setting 
forth that such Justice, at the time of taking such proof or ac- 
knowledgment, was authorized to take the same, and that the Clerk 
is acquainted with his hand- writing, and believes that the signature 
to the original certificate is genuine. 



CHAPTER XXVII. 

PARTNERSHIPS. 

Partnership is the association of two or more persons for the pur- 
pose of carrying on business together, and dividing its profits be- 
tween them. 

Every partnership that is not formed in accordance with the law 
concerning mining or special partnerships, and every special part- 
nership, so far only as the general partners are concerned, is a gen- 
eral partnership. 

Every general partner is agent for the partnership in the transac- 
tion of its business, and has authority to do whatever is necessary to 
carry on such business in the ordinary manner, and for this purpose 
may bind his copartners by an agreement in writing. 

A partner, as such, has not authority to do any of the following 



Chap. 27.] California. 103 

acts, unless his copartners have wholly abandoned the business to 
him, or are incapable of acting : 

1. To make an assignment of the partnership property or any 
portion thereof to a creditor, or to a third person in trust, for the 
benefit of a creditor or of all creditors. 

2. To dispose of the good will of the business. 

3. To dispose of the whole of the partnership property at once, 
unless it consists* entirely of merchandise. 

4. To do any act which would make it impossible to carry on the 
ordinary business of the partnership. 

5. To confess a judgment. 

6. To submit a partnership claim to arbitration. 

7. To do any act which is not necessary to carry on such business 
in the ordinary manner. 

Every general partner is liable to third persons for all the obliga- 
tions of the partnership, jointly with his copartners. 

Any one permitting himself to be represented as a partner, gen- 
eral or special, is liable as such to third persons to whom such rep- 
resentation is communicated, and who, on the faith thereof, give 
credit to the partnership. 

The liability of a general partner for the acts of his copartners 
continues, even after a dissolution of the copartnership, in favor of per- 
sons who have had dealings with and given credit to the partnership 
during its existence, until they have had personal notice of the disso- 
lution ; and in favor of other persons until such dissolution has been 
advertised in a newspaper published in every county where the part- 
nership, at the time of its dissolution, had a place of business, if a 
newspaper is there published, to the extent in either case to which 
such persons part with value in good faith, and in the belief that 
such partner is still a member of the firm. 

After the dissolution of a partnership, any general partner may 
act in liquidation of its affairs, unless the liquidation is committed, 
by consent of all the partners, to one or more of them ; and in such 
case the others have no right to act therein, but their acts are valid 
in favor of persons parting with value, in good faith, upon credit 
thereof. 

A partner authorized to act in liquidation may collect, compro- 
mise, or release any debts due to the partnership, pay or compromise 



104 California. [Part 3. 

any claims against it, and dispose of the partnership property ; and 
he may indorse, in the name of the firm, promissory notes or other 
obligations held by the partnership, for the purpose of collecting the 
same ; but he cannot create any new obligation in its name, or re- 
vive a debt against the firm by an acknowledgment, when an action 
thereon is barred. 

Except as hereafter provided, every partnership transacting busi- 
ness in this State under a fictitious name, or a designation not show- 
ing the names of the persons interested as partners in such business, 
must file with the Clerk of the county in which its principal place of 
business is situated, a certificate stating the names in full of all the 
members of such partnership and their places of residence, and pub- 
lish the same once a week for four successive weeks in a newspaper 
published in the county, if there be one, and if there be none in such 
county, then in a newspaper published in an adjoining county. 

A commercial or banking partnership, established and transacting 
business in a place without the United States, may, without filing 
the certificate, or making the publication heretofore mentioned, use 
in this State the partnership name used by it there, although it be 
fictitious, or do not show the names of the persons interested as 
partners in such business. 

The certificate filed with the Clerk must be signed by the part- 
ners, and acknowledged before some officer authorized to take the ac- 
knowledgment of conveyances of real property. Where the partner- 
ship is formed after the first of July, eighteen hundred and seventy- 
four, the certificate must be filed ' and the publication made within 
one month after the formation of the partnership, or within one 
month from the time designated in the agreement of its members for 
the commencement of the partnership. Where the partnership has 
been formed prior to the first of July, eighteen hundred and seventy- 
four, the certificate must be filed and the publication made within 
six months after the first of July, aforesaid. 

On every change in the members of a partnership transacting 
bu siness in this State under a fictitious name, or a designation which 
does not show the names of the persons interested as partners in its 
business, (except in the case of a commercial or banking partnership, 
established and transacting business in a place without the United 
States, as well as in this State,) a new certificate must be filed and a 



Chap. 27.] California. 105 

new publication made, as is required on the formation of such 
partnership. 

Persons doing business as partners, contrary to the aforesaid pro- 
visions, shall not maintain any action upon or on account of any con- 
tract made or transactions had in their partnership-name, in any 
Court of this State, until they have first filed the certificate and 
made the publication required. Copies of the entries of a County 
Clerk, when certified by him, and affidavits of publication made by 
the printer, publisher, or chief clerk of a newspaper, are presump- 
tive evidence of the facts therein stated. 

Special partnerships are formed by filing a certificate with the 
County Clerk and Recorder, severally signed, stating : 

1. The name under which the partnership is to be conducted. 

2. The general nature of the business intended to be transacted. 

3. The names of all the partners, and their residences, specifying 
which are general and which are special partners. 

4. The amount of capital which each special partner has contrib- 
uted to the capital stock. 

5. The periods at which such partnerships shall begin and end. 
Affidavits must be made and filed, setting forth the amount actu- 
ally contributed by the special partners. 

The certificate mentioned must be published in a newspaper in 
the county, once a week for four successive weeks. 

The general partners in a special partnership are liable to the same 
extent as partners in a general partnership. The contribution of a 
special partner to the capital of the firm, and the increase thereof, is 
liable for its debts, but he is not otherwise liable therefor. 



106 CALIFORNIA. [Part 3. 

CHAPTER XXVIII. 

MARRIED WOMEN. 

All property of the wife owned by her before marriage, and that 
acquired afterward by gift, bequest, devise, or descent, with the 
rents, issues, and profits thereof, is her separate property. All 
property owned by the husband before marriage, and that acquired 
afterward by gift, bequest, devise, or descent, with the rents, issues, 
and profits thereof, is his separate property. All other property ac- 
quired after marriage, by either husband or wife, or both, is com- 
munity property. The earnings of the wife are not liable for the debts 
of the husband. The earnings and accumulations of the wife, and 
her minor children living with her and in her custody, while she is 
living separate from her husband, are the separate property of the 
wife. 

The separate property of the wife is not liable for the debts of her 
husband, but is liable for her own debts, contracted before or after 
marriage. The separate property of the husband is not liable for 
the debts of the wife contracted before marriage. The property of 
the community is not liable for the contracts of the wife made after 
marriage, unless secured by a pledge or mortgage thereof executed 
by the husband. 

The husband has the management and control of the community 
property, with the like absolute power of disposition (Other than 
testamentary) as he has of his separate estate. No estate in dower 
is alloted to the wife upon the death of her husband. 

If the husband neglects to make adequate provision for the sup- 
port of his wife, any other person may, in good faith, supply her 
with articles necessary for her support, and recover the reasonable 
value thereof from the husband ; except that a husband abandoned 
by his wife is not liable for her support until she offers to return, 
unless she was justified, by his misconduct, in abandoning him ; nor 
is he liable for her support when she is living separate from him by 
agreement, unless such support is stipulated in the agreement. 



Chap. 29j] California. 107 

A maried woman may become a sole trader by the judgment of 
the Superior Court of the county in which she has resided for six 
months next preceding the application. 

A certified copy of the decree of the Court must be recorded in- 
the office of the Recorder of the county where the business is to be 
carried on. 

A sole trader is entitled to carry on the business specified, in her 
own name, and the property, revenues, moneys and credits so by her 
invested, and the profits thereof, belong exclusively to her, and are 
not liable for any debts of her husband. The husband of a sole 
trader is not liable for any debts contracted by her in the course of 
her sole trader's business, unless contracted upon his written consent. 



CHAPTER XXIX. 

MINORS. 

Minors are males under twenty-one years of age, females under 
eighteen years of age. 

A minor cannot give a delegation of power, nor, under the age of 
eighteen, make a contract relating to real property, or any interest 
therein, or relating to any personal property not in his immediate 
possesion or control. A minor may make any other contract, in the 
same manner as an adult, subject to his power of disaffirmance. A 
minor cannot disaffirm a contract, otherwise valid, to pay the rea- 
sonable value of things necessary for his support, or that of his fam- 
ily, entered into by him when not under the care of a parent or 
guardian able to provide for him or them. Nor can a minor disaf- 
firm an obligation, otherwise valid, entered into by him under the 
express authority or direction of a statute. In all other cases, the 



108 California. [Part 3. 

contract of a minor, if made whilst he is under the age of eighteen, 
may be disaffirmed by the minor himself, either before his majority, 
or within a reasonable time afterward ; or in case of his death within 
that period, by his heirs or personal representatives ; and if the con- 
tract be made by the minor whilst he is over the age of eighteen, it 
may be disaffirmed in like manner, upon restoring the consideration 
to the party from whom it was received, or paying its equivalent. 

If a parent neglect to provide articles necessary for his child , who 
is under his charge, according to his circumstances, a third person 
may in good faith supply such necessaries, and recover the reason- 
able value thereof from the parent, 

A minor may enforce his rights by civil action, or other legal pro- 
ceedings, in the same manner as a person of full age, except that a 
guardian must conduct the same. 



CHAPTER XXX. 

STOPPAGE IN TRANSIT. 

A seller or consignor of property, whose claim for its price or 
proceeds has not been extinguished, may, upon the insolvency of the 
buyer or consignee becoming known to him after parting with the 
property, stop it while on its transit to the buyer or consignee, and 
resume possession thereof. A person is insolvent, within the mean- 
ing of the above term, when he ceases to pay his debts in the man- 
ner usual with persons of his business, or when he declares his ina- 
bility or unwillingness to do so. The transit of property is at an 
end when it comes into the possession of the consignee, or into that 
of his agent, unless such agent is employed merely to forward the 
property to the consignee. Stoppage in transit can be effected only 



Chap. 31.] CALIFORNIA. 109 

by notice to the carrier or depositary of the property, or by taking 
actual possession thereof. 

Stoppage in transit does not, of itself, rescind a sale, but is a 
means of enforcing the lien of the seller. 

A bona fide transfer of a bill of lading defeats the right of stop- 
page in transit, if such transfer is made before the right of stoppage 
has been actually exercised by the consignor. 



CHAPTEK XXXI. 

BILLS OF LADING. 

A bill of lading is an instrument in writing, signed by a carrier 
or his agent, describing the freight so as to identify it, stating the 
name of the consignor, the terms of the contract for carriage, and 
agreeing or directing that the freight be delivered to the order or 
assigns of a specified person, at a specified place. 

The title to the freight which the first holder of a bill of lading 
had when he received it, passes to every subsequent indorsee thereof, 
in good faith and for value, in the. ordinary course of business, with 
like effect, and in like manner, as in the case of a bill of exchange. 
If a bill of lading is made payable to "bearer," it is transferable by 
delivery. 



110 California. [Part 3. 



CHAPTER XXXII. 



INTEREST. 

Unless there is an express contract in writing, fixing a different 
rate, interest is payable on all moneys at the rate of seven per cent, 
per annum, after they become due, on any instrument of writing ex- 
cept a judgment, and on moneys lent or due oil any settlement of 
accounts, from the day on which the balance is ascertained, and on 
moneys received to the use of another, and detained from him. In 
the computation of interest for a period less than a year, three hun- 
dred and sixty days are deemed to constitute a year. 

Interest is payable on judgments recovered in the Courts of this 
State at the rate of seven per cent per annum, and no greater rate ; 
but such interest must not be compounded in any manner or form. 

Parties may agree, in writing, for the payment of any rate of in- 
terest, and it shall be allowed, according to the terms of the agree- 
ment, until the entry of judgment; and they may, in any contract 
in writing, whereby any debt is secured to be paid, agree that if the 
interest on such debt is not punctually paid, it shall become a part 
of the principal, and thereafter bear the same rate as the principal 
debt. 

Open accounts do not bear interest. 



Chap. 33.] CALIFORNIA. Ill 

CHAPTER XXXIII. 

COMMON CARRIERS. 

Unless the consignor accompanies the freight, and retains exclu- 
sive control thereof, an inland common carrier of property is liable, 
from the time that he accepts until he relieves himself from liability, 
for the loss or injury thereof, except — 

1. An inherent defect, vice, or weakness, or a spontaneous action 
of the property itself. 

2. The act of a public enemy of the United States, or of this State. 

3. The act of the law ; or, 

4. An irresistible superhuman cause. 

He is liable, even in the cases above excepted, if his ordinary 
negligence exposes the property to the cause of the loss. A common 
carrier is liable for delay only when it is caused by his want of or- 
dinary care and diligence. 

A marine carrier is liable in like manner as an inland carrier, ex- 
cept for loss and injury caused by the perils of the sea or fire. 



112 California. [Part 3 

CHAPTER XXXIV. 

MORTGAGES OF PERSONAL PROPERTY. 

Mortgages may be made upon — 

1. Locomotives, engines, and the other rolling-stock of a railroad. 

2. Steamboat machinery, and machinery used by machinists, foun- 
drymen, and mechanics. 

3. Steam-engines and boilers. 

4. Mining machinery. 

5. Printing presses and material. 

6. Professional libraries. 

7. Instruments of a surveyor, physician, or dentist. 

8. Upholstery and furniture used in hotels, lodging or boarding- 
houses, when mortgaged to secure the purchase money of the articles 
mortgaged. 

9. Growing crops. 

10. Vessels of more than five tons burden. 

11. Instruments, negatives, furniture and fixtures of a photo- 
graphic gallery. 

12. The machinery, casks, pipes, tubs and utensils used in the 
manufacture of wine, fruit brandy and fruit syrup or sugar. 

A mortgage of personal property is void as against creditors of the 
mortgagor, and subsequent purchasers and incumbrancers of the 
property in good faith and for value, unless — 

1 . It is accompanied by the affidavit of all the parties thereto that 
it is made in good faith, and without any design to hinder, delay, or 
defraud creditors. 

2. It is acknowledged or proved, certified and recorded. 

A mortgage of personal property must be recorded in the office of 
the County Recorder of the county in which the mortgagor resides, 
and also of the county in which the property mortgaged is situated, 
or to which it may be removed. 

A certified copy of a mortgage of personal property once recorded 






Chap. 34.] California. 113 

may be recorded in any other county, and when so recorded, the rec- 
ord thereof has the same force and effect as though it was of the 
original mortgage. 

When property mortgaged is thereafter by the mortgagor removed 
from the county in which it is situated, it is, except as between 
the parties to the mortgage, exempt from the operation thereof, un- 
less either : 

1. The mortgagee, within thirty days after such removal, causes 
the mortgage to be recorded in the county to which the property has 
been removed ; or, 

2. The mortgagee, within thirty days after such removal, takes 
possession of the property, as prescribed in the next paragraph. 

If the mortgagor voluntarily removes or permits the removal of 
the mortgaged property from the county in which it was situated at 
the time it was mortgaged, the mortgagee may take possession and 
dispose of the property as a pledge for the payment of the debt, 
though the debt is not due. 

Personal property mortgaged may be taken under attachment or 
execution issued at the suit of a creditor. Before the property is so 
taken, the officer must pay or tender to the mortgagee the amount 
of the mortgage debt and interest, or must deposit the amount 
thereof with the County Clerk or Treasurer, payable to the order of 
the mortgagee. 

When the property thus taken is sold under process, the officer 
must apply the proceeds of sale as follows : 

1. To the repayment of the sum paid to the mortgagee, with inter- 
est from the date of such payment ; and, 

2. The balance, if any, in like manner as the proceeds of sales 
under execution are applied in other cases. 

A mortgagee of personal property, when the debt to secure which 
the mortgage was executed becomes due, may foreclose the mort- 
gagor's right of redemption by a sale of the property made in the 
manner prescribed in the chapter on " pledge," or may proceed by a 
judicial sale under the direction of a competent Court. 



114 * California. [Part 3 

CHAPTER XXXV. 

PLEDGE. 



A pledge is a deposit of personal property by way of security for 
the performance of another act. 

When a debtor has obtained credit, or an extension of time, by a 
fraudulent misrepresentation of the value of property pledged by or 
for him, the creditor may demand a further pledge to correspond 
with the value represented ; and in default thereof may recover his 
debt immediately, though it be not actually due. 

When performance of the act for which a pledge is given is due, 
in whole or in part, the pledgee may collect what is due to him by a 
sale of the property pledged. 

Before property pledged can be sold, and after performance of the 
act for which it is security is due, the pledgee must demand per- 
formance thereof from the debtor, if the debtor can be found. 

A pledgee must give actual notice to the pledgor of the time and 
place at which the property pledged will be sold, at such a reason- 
able time before the sale as will enable the pledgor to attend. 

The sale by a pledgee of property pledged must be made by pub- 
lic auction, in the manner and upon the notice to the public usual 
at the place of sale, in respect to auction sales of similar property ; 
and must be for the highest obtainable price. 

A pledgee cannot sell any evidence of debt pledged to him, except 
the obligations of governments, States or corporations ; but he may 
collect the same when due. 

The pledgor may require the property to be sold when it will 
bring a sufficient amount to satisfy the claim of the pledge. 

A pledgee or pledge-holder cannot purchase the property pledged, 
except by direct dealings with the pledgor. 

Instead of selling property pledged, as hereinbefore provided, a 
pledgee may foreclose the right of redemption by a judicial sale, 
under the directions of a competent Court ; and in that case may be 
authorized by the Court to purchase at the sale. 



Chap. 36.] CALIFORNIA. 115 

CHAPTER XXXVI. 

GUARANTY AND SURETYSHIP. 

A guaranty is a promise to answer for the debt, default, or mis- 
carriage of another person. 

Where a guaranty is entered into at the same time with the 
original obligation, or with the acceptance of the latter by the guar- 
antee, and forms with that obligation a part of the consideration to 
him, no other consideration need, exist. In all other cases there 
must be a consideration distinct from that of the original obligation. 

Except as hereinafter described, a guaranty must be in writing, 
and signed by the guarantor ; but the writing need not express a con- 
sideration. 

A promise to answer for the obligation of another, in any of the 
following cases, is deemed an original obligation of the promisor, and 
need not be in writing : 

1. Where the promise is made by one who has received property 
of another upon an undertaking to apply it pursuant to such promise ; 
or by one who has received a discharge from an obligation in whole 
or in part, in consideration of such promise. 

2. Where the creditor parts with value, or enters into an obliga- 
tion in consideration of the obligation in respect to which the prom- 
ise is made, in terms or under circumstances such as to render the 
party making the promise the principal debtor, and the person in 
whose behalf it is made his surety. 

3. Where the promise, being for an antecedent obligation of an- 
other, is made upon the consideration that the party receiving it 
cancels the antecedent obligation, accepting the new promise as a 
substitute therefor ; or upon the consideration that the party re- 
ceiving it releases the property from a levy, or his person from im- 
prisonment, under an execution on a judgment obtained upon the 
antecedent obligation ; or upon a consideration beneficial to the 
promisor, whether moving from either party to the antecedent obli- 
gation, or from another person. 



116 California. [Part 3. 

4. Where a factor undertakes for a commission, to sell merchan- 
dise and guarantee the sale. 

5. Where the holder of an instrument for the payment of money, 
upon which a third person is or may become liable to him, transfers 
it in payment of a precedent debt of his own, or for a new considera- 
tion, and in connection with such transfer enters into a promise re- 
specting such instrument. 

A guarantor is exonerated, except so far as he may be indemnified 
by the principal, if by any act of the creditor without the consent 
of the guarantor the original obligation of the principal is altered in 
any respect, or the remedies or rights of the creditor against the 
principal in respect thereto are in any way impaired or suspended. 

A surety is one who, at the request of another, and for the pur- 
pose of securing to him a benefit, becomes responsible for the per- 
formance, by the latter, of some act in favor of a third person, or 
hypothecates property as security therefor. 

A surety is exonerated : 

1. In like manner with a guarantor. 

2. To the extent to which he is prejudiced by any act of the 
creditor which would naturally prove injurious to the remedies of 
the surety, or inconsistent with his rights, or which lessens his se- 
curity; or, 

3. To the extent to which he is prejudiced by an omission of the 
creditor to do anything, when required by the surety, which it is his 
duty to do. 

A surety has all the rights of a guarantor. 

A surety may require his creditor to proceed against the principal, 
or to pursue any other remedy in his power, which the surety can- 
not, himself, pursue, and which would lighten his burden ; and if in 
such case the creditor neglects to do so, the surety is exonerated to 
the extent to which he is thereby prejudiced. 

A surety may compel his principal to perform the obligation when 
due. 

A surety, upon satisfying the obligation of the principal, is en- 
titled to enforce every remedy which the creditor then has against 
the principal, to the extent of reimbursing what he has expended, 
and also to require all his co-sureties to contribute thereto, without 
regard to the order of time in which they became such. 



Chap. 37.] CALIFORNIA. 117 

Whenever property of a surety is hypothecated with property of 
the principal, the surety is entitled to have the property of the 
principal first applied to the discharge of the obligation. 

Letter op Credit. 

A letter of credit is a written instrument, addressed by one per- 
son to another, requesting the latter to give credit to the person 
in whose favor it is drawn. 

The writer of a letter of credit is, upon the default of the debtor, 
liable to those who gave credit in. compliance with its terms. 



CHAPTEE XXXVII. 

SALE. 

No sale of personal property, or agreement to buy or sell it, for a 
price of two hundred dollars or more, is valid, unless : 

1. The agreement, or some note or memorandum thereof, be 
in writing, and subscribed by the party to be charged, or by his 
agent ; or, 

2. The buyer accepts and receives part of the thing sold, or when 
it consists of a thing in action, part of the evidences thereof, or some 
of them ; or, 

3. The buyer, at the time of the sale, pays a part of the price. 

The foregoing provisions do not affect an agreement to manufac- 
ture a thing from materials furnished by the manufacturer or by 
another person. 

No agreement for the sale of real property, or of an interest there- 
in, is valid, unless the same, or some note or memorandum thereof, 



118 California. [Part 3. 

be in writing, and subscribed by the party to be charged, or his 
agent thereunto authorized in writing. 

If a buyer of personal property does not pay for it according to 
contract, and it remains in the possession of the seller after payment 
is due, the seller may rescind the sale, or enforce his lien for the 
price. 

In order to make a sale of personal property effectual as against 
creditors, there must be an immediate, actual, and continued change 
of possession. 



CHAPTEK XXXVIII. 

CONTRACTS. 

A contract is an agreement to do or not to do a certain thing. It 
is essential to the existence of a contract that there should be : 

1. Parties capable of contracting. 

2. Their consent. 

3. A lawful object. 

4. A sufficient cause of consideration. 

A written instrument is presumptive evidence of consideration. 

Contracts are either expressed or implied. 

An express contract is one, the terms of which are stated in 
words. 

An implied contract is one, the existence and terms of which are 
manifested by conduct. 

The following contracts are invalid, unless the same, or some note 
or memorandum thereof, be in writing, and subscribed by the party 
to be charged, or by his agent : 



Chap. 38j] CALIFORNIA. 119 

1. An agreement that by its terms is not to be performed within 
a year from the making thereof. 

2. A special promise to answer for the debts, default or miscar- 
riage of another, except in the case mentioned in Chapter XXXYI. 

3. An agreement made upon consideration of marriage, other 
than a mutual promise to marry. 

4. An agreement for the sale of goods, chattels, or things in ac- 
tion, at a price not less than two hundred dollars, unless the buyer 
accept or receive part of such goods and chattels, or the evidences, 
or some of them, of such things in action, or pay at the time some 
part of the purchase money; but when a sale is made by auction, an 
entry by the auctioneer in his sale book, at the time of the sale, of 
the kind of property sold, the terms of sale, the price, and the names 
of the purchaser and person on whose account the sale is made, is a 
sufficient memorandum. 

5. An agreement for the leasing for a longer period than one year, 
or for the sale of real property, or of an interest therein ; and such 
agreement, if made by an agent of the party sought to be charged, 
is invalid, unless the authority of the agent be in writing, sub- 
scribed by the party sought to be charged. 

6. An agreement authorizing or employing an agent or broker to 
purchase or sell real estate for compensation or a commission. 

All contracts may be oral, except such as are specially required by 
statute to be in writing. 



120 California. [Part 3. 



CHAPTER XXXIX. 

NEGOTIABLE INSTRUMENTS. 

A bill of exchange is an instrument negotiable in form, by which 
one, who is called the drawer, requests another, called the drawee, 
to pay a specified sum of money. 

A bill of exchange is payable : 

1. At the place where, by its terms, it is made payable ; or, 

2. If it specify no place of payment, then at the place to which it 
is addressed ; or, 

3. If it is not addressed to any place, then at the place of resi- 
dence or business of the drawee, or wherever he may be found. If 
the drawee has no place of business, or if his place of business or 
residence cannot, with reasonable diligence, be ascertained, present- 
ment for payment is excused, and the bill may be protested for non- 
payment. 

Presentment of a bill of exchange for acceptance must be made in 
the following manner, as nearly as by reasonable diligence it is 
practicable : 

1. The bill must be presented by the holder or his agent. 

2. It must be presented on a business day, and within reasonable 
hours. 

3. It must be presented to the drawee, or if he be absent from 
his place of residence or business, to some person having charge 
thereof, or employed therein ; and, 

4. The drawee, on such presentment, may postpone his accept- 
ance or refusal until the next day. If the drawee have no place of 
business, or if his place of business or residence cannot, with reason- 
able diligence, be ascertained, presentment for acceptance is excused, 
and the bill may be protested for non-acceptance. 

When a bill of exchange is payable at a specified time after sight, 
the drawer and indorsers are exonorated if it is not presented for 



Chap. 3 9. J CALIFORNIA. 121 

acceptance within ten days after the time which would suffice, with 
ordinary diligence, to forward it for acceptance, unless presentment 
is excused. 

An acceptance of a bill must be made in writing, and may be 
made by the acceptor writing his name across the face of the bill, 
with or without other words. 

An unconditional promise, in writing, to accept a bill of ex- 
change, is a sufficient acceptance thereof, in favor of every person 
who upon the faith thereof has taken the bill for value or other 
good consideration. 

On the dishonor of a bill of exchange by the drawee, and in case 
of a foreign bill, after it has been duly protested, it may be accepted 
or paid by any person, for the honor of any party thereto. 

If a bill of exchange, payable at sight or on demand, without in- 
terest, is not duly presented for payment within ten days after the 
time in which it could, with reasonable diligence, be transmitted to 
the proper place for presentment, the drawer and indorsers are ex- 
onorated unless such presentment is excused. 

The presentment of a bill of exchange for acceptance is excused 
if the drawee has not capacity to accept it. 

Delay in the presentment of a bill of exchange for acceptance is 
excused, when caused by circumstances over which the owner has 
no control. 

Presentment of a bill of exchange for acceptance or payment, and 
notice of its dishonor, are excused as to the drawer, if he forbids the 
drawee to accept, or the acceptor to pay the bill ; or if, at the time 
of drawing, he had no reason to believe that the drawee would 
accept or pay the same. 

An inland bill of exchange is one drawn and payable within this 
State. All others are foreign. 

Notice of the dishonor of a foreign bill of exchange can be given 
only by notice of its protest, and the protest must be made by a No- 
tary Public, if with reasonable diligence one can be obtained ; and 
if not, then by any reputable person, in the presence of two wit- 
nesses. Protest for non-acceptance must be made in the city or 
town in which the bill is presented for acceptance, and a protest 
for non-payment in the city or town in which it is presented for 
payment. 



122 California. [Part 3. 

One who pays a foreign bill for honor must declare, before pay- 
ment, in the presence of a person authorized to make protest, for 
whose honor he pays the same, in order to entitle him to reimburse- 
ment. 

Damages on foreign bills of exchange are allowed as hereinafter 
prescribed, as a full compensation for interest accrued before notice 
of dishonor, re-exchange, expenses, and all other damages, in favor 
of holders for value only, upon bills of exchange drawn or nego- 
tiated within the State, and protested for non-acceptance or non-pay- 
ment. 

Damages are allowed as follows : 

1. If drawn upon any person in this State, two dollars upon each 
one hundred dollars of the principal sum specified in the bill. 

2. If drawn upon any person out of this State, but in any other of 
the States west of the Rocky Mountains, five dollars upon each hun- 
dred dollars of the principal sum specified in the bill. 

3. If drawn upon any person in any of the United States, east of 
the Rocky Mountains, ten dollars upon each hundred dollars of the 
principal sum specified in the bill. 

4. If drawn upon any person in any place in a foreign country, 
fifteen dollars upon each hundred dollars of the principal sum speci- 
fied in the bill. 

From the time of notice of dishonor and demand of payment, 
lawful interest must be allowed upon the aggregate amount of the 
principal sum specified in the bill, and the damages above men- 
tioned. 

A promissory note is an instrument negotiable in form, whereby 
the signer promises to pay a specified sum of money. 

If a promissory note, payable on demand, or at sight, without in- 
terest, is not duly presented for payment within six months from its 
date, the indorsers thereof are exonerated, unless such presentment 
is excused. 

Days of grace are not allowed on bills of exchange and promissory 
notes. 

A check is a bill of exchange drawn upon a bank or banker, or a 
person described as such upon the face thereof, and payable on de- 
mand without interest. 



Chap. 39 ] California. 123 

A check is subject to all the provisions herein mentioned concern- 
ing bills of exchange, except that — 

1. The drawers and indorsers are exonerated by delay in presen- 
tation only to the extent of the injury they suffer thereby. 

2. An indorsee, after its apparent maturity, but without actual 
notice of its dishonor, acquires a title equal to that of an indorsee 
before such period. 

A negotiable instrument must be made payable in money only, 
and without any condition not certain of fulfillment. 

A negotiable instrument may be with or without date, and with 
or without designation of the time or place of payment. 

A negotiable instrument may contain a pledge of collateral se- 
curity, with authority to dispose thereof. 

A negotiable instrument which does not specify a place of payment 
is payable at the residence or place of business of the maker, or 
wherever he may be found. 

A negotiable instrument, made payable to the order of the maker, 
or of a fictitious person, if issued by the maker for a valid consider- 
ation, without indorsement, has the same effect against him, and all 
other persons having notice of the facts, as if payable to the bearer. 

An indorsement of a negotiable instrument may be general or 
special. 

A general indorsement is one by which no indorsee is named. A 
special indorsement specifies the indorsee. 

A negotiable instrument bearing a general indorsement cannot be 
afterward specially indorsed ; but any lawful holder may turn a 
general indorsement into a special one, by writing above it a direc- 
tion for payment to a particular person. 

A special indorsement may, by express words for that purpose, 
but not otherwise, be so made as to render the instrument not nego- 
tiable. 

An indorser may qualify his indorsement with the words " without 
recourse," or equivalent words ; and upon such indorsement he is 
responsible only to the same extent as in the case of a transfer with- 
out indorsement. 

An indorsee in due course is one who, in good faith, in the or- 
dinary course of business, and for value, before its apparent matur- 
ity or presumptive dishonor, and without knowledge of its actual 



124 California. [Part 3. 

dishonor, acquires a negotiable instrument duly indorsed to him, or 
indorsed generally, or payable to the bearer. 

An indorsee of a negotiable instrument, in due course acquires an 
absolute title thereto, so that it is valid in his hands, notwithstanding 
any provision of law making it generally void or voidable, and not- 
withstanding any defect in the title of the person from whom he 
acquired it. 

The want of consideration for the undertaking of a maker, ac- 
ceptor, or indorser of a negotiable instrument does not exonerate 
him from liability thereon to an indorsee in good faith for a consid- 
eration. 

It is not necessary to make a demand of payment upon the prin- 
cipal debtor in a negotiable instrument in order to charge him ; but 
if the instrument is, by its terms, payable at a specified place, and 
he is able and willing to pay it there at maturity, such ability and 
willingness are equivalent to an offer of payment on his part. 

Presentment of a negotiable instrument for payment, when neces- 
sary, must be made as follows, as nearly as by reasonable diligence 
it is practicable : 

1. The instrument must be presented by the holder. 

2. The instrument must be presented to the principal debtor, if 
he can be found at the place where presentment should be made ; 
and if not, then it must be presented to some other person having 
charge thereof, or employed therein, if one can be found there. 

3. An instrument which specifies a place for its payment must be 
presented there ; and if the place specified includes more than one 
house, then at the place of residence or business of the principal 
debtor, if it can be found therein. 

4. An instrument which does not specify a place for its payment 
must be presented at the place of residence or business of the princi- 
pal debtor, or wherever he may be found, at the option of the pre- 
senter; and 

5. The instrument must be presented upon the day of its maturity, 
or if it be payable on demand, it may be presented on any day. It 
must be presented within reasonable hours ; and if it be payable at a 
banking-house, within the usual banking-hours of the vicinity; but 
by the consent of the person to whom it should be presented, it may 
be presented at any hour of the day. 



Chap. 39.] California. 125 

6. If the principal debtor have do place of business, or if his 
place of busiDess or resideDce cannot, with reasonable diligence, be 
ascertained, presentment for paymeDt is excused. 

The appareDt maturity of a negotiable instrument, payable at a 
particular time, is the day on which, by its terms, it becomes due, or 
when that is a holiday, the Dext business day. 

A bill of exchange, payable at a certain time after sight, which is 
not accepted within ten days after its date, in addition to the time 
which would suffice, with ordinary diligence, to forward it for ac- 
ceptance, is presumed to have been dishonored. 

The apparent maturity of a bill of exchange, payable at sight or 
on demand, is : 

1. If it bears interest, one year after its date ; or, 

2. If it does not bear interest, ten days after its date, in addition 
to the time which would suffice, with ordinary diligence, to forward 
it for acceptance. 

The apparent maturity of a promissory note, payable at sight or 
on demand, is : 

1 . If it bears interest, one year after its date ; or, 

2. If it does not bear interest, six months after its date. 

When a promissory note is payable at a certain time after sight 
or demand, such time is to be added to the period above-mentioned. 

A negotiable instrument is dishonored when it is either not paid 
or not accepted, according to its tenor, on presentation for the pur- 
pose, or without presentation when that is excused. 

Notice of the dishonor of a negotiable instrument may be given : 

1. By a holder thereof; or, 

2. By any party to the instrument who might be compelled to 
pay it to the holder, and who would, upon taking it up, have a 
right to reimbursement from the party to whom the notice is given. 

A notice of dishonor may be giveD iD aDy form which describes 
the iDstrumeut with reasonable certainty, and substantially informs 
the party receiving it that the instrument has been dishonored. 

A notice of dishonor may be given : 

1. By delivering it to the party to be charged, personally, at any 
place; or, 



126 California. [Part 3. 

2. By delivering it to some person of discretion at the place of 
residence or business of such party, apparently acting for him ; or, 

3. By properly folding the notice, directing it to the party to be 
charged, at his place of residence, according to the best information 
that the person giving the notice can obtain, depositing it in the 
Post-office most conveniently accessible from the place where the 
presentment was made, and paying the postage thereon. 

In case of the death of a party to whom notice of dishonor should 
otherwise be given, the notice must be given to one of his personal 
representatives ; or if there are none, then to any member of his 
family who resided with him at his death ; or if there is none, then 
it must be mailed to his last place of residence. 

A notice of dishonor given otherwise than by mail must be given 
on the day of dishonor, or on the next business day. When given 
by mail, it must be deposited in the Post-office in time for the first 
mail which closes after noon of the first business day succeeding the 
dishonor, and which leaves the place where the instrument was dis- 
honored for the place to which the notice should be sent. 

Every party to a negotiable instrument, receiving notice of its dis- 
honor, has the like time thereafter to give similar notice to prior 
parties as the original holder had after its dishonor. But this ad- 
ditional time is available only to the particular party entitled thereto. 

A notice of the dishonor of a negotiable instrument, if valid, in 
favor of the party giving it, inures to the benefit of all other parties 
thereto whose right to give the like notice has not then been lost. 

Notice of dishonor is excused : 

1. When the party by whom it should be given cannot, with 
reasonable diligence, ascertain either the place of residence or busi- 
ness of the party to be charged ; or, 

2. When there is no Post-office communication between the town 
of the party by whom the notice should be given, and the town in 
which the place of residence or business of the party to be charged 
is situated ; or, 

3. When the party to be charged is the same party who dishonors 
the instrument ; or, 

4. When the notice is waived by the party entitled thereto. 
Presentment and notice are excused as to any party who informs 



Chap. 40.] CALIFORNIA. 127 

the holder, within ten days before maturity, that the instrument will 
be dishonored. 

If before or after the maturity of an instrument an indorser has 
received full security for the amount thereof, or the maker has 
assigned all his estate to him as such security, presentment and no- 
tice to him are excused. 

Delay in presentment, or in giving notice of dishonor, is excused 
when caused by circumstances which the party delaying could not 
have avoided by the exercise of reasonable care and diligence. 

A waiver of presentment waives notice of dishonor also ; but a 
waiver of notice does not waive presentment. 

A waiver of protest on any negotiable instrument, other than a 
foreign bill of exchange, waives presentment and notice. 



CHAPTER XL. 

PRINCIPAL AND AGENT. 



An agent is one who represents another, called the principal, in 
dealings with third persons. 

Any person having capacity to contract may appoint an agent, 
and any person may be an agent. 

An agent for a particalar act or transaction is called a special agent. 
All others are general agents. 

An agent, unless specially forbidden by his principal to do so, can 
delegate his powers to another person in any of the following cases, 
and in no others : 

1. When the act to be done is purely mechanical. 

2. When it is such as the agent cannot himself, and the sub-agent 
can, lawfully perform. 



128 California. [Part 3. 

3. When it is the usage of the place to delegate such powers. 

4. When such delegation is specially authorized by the principal. 
If an agent employs a sub-agent without authority, the former is 

a principal and the latter his agent, and the principal of the former 
has no connection with the latter. 

A sub-agent, lawfully appointed, represents the principal in like 
manner with the original agent ; and the original agent is not re- 
sponsible to third persons for the acts of the sub-agent. 



CHAPTER XLI. 

FRAUDULENT INSTRUMENTS AND TRANSFERS. 



Every transfer of property or change thereon made, every obliga- 
tion incurred, and every judicial proceeding taken, with intent to 
delay or defraud any creditor or other person of his demands, is 
void against all creditors of the debtor and their successors in inter- 
est, and against any person upon whom the estate of the debtor de- 
volves, in trust for the benefit of others than the debtor. 

Every transfer of personal property (other than a thing in action, 
or a ship or cargo at sea, or in a foreign port, and every lien thereon, 
other than a mortgage, when allowed by law and a contract of bot- 
tomry or respondentia), is conclusively presumed — if made by a per- 
son having at the time the possession or control of the property, and 
not accompanied by an immediate delivery, and followed by an ac- 
tual and continued change of possession of the things transferred, — 
to be fraudulent, and therefore void, against those who are his cred- 
itors while he remains in possession, and the successors in interest 
of such creditors, and against any person on whom the estate de- 



Chap. 42.] CALIFORNIA. 129 

volves in trust for the benefit of others than himself, and against 
purchasers or incumbrancers in good faith subsequent to the trans- 
fer. 



CHAPTER XLIL 

ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 

An insolvent debtor may, in good faith, execute an assignment of 
property to one or more assignees, in trust for the satisfaction of his 
creditors. 

An assignment for the benefit of creditors is void against any 
creditor of the assignor, not assenting thereto, in the following- 
cases : 

1. If it give a preference of one debt, or class of debts, over 
another. 

2. If it tend to coerce any creditor to release or compromise his 
demands. 

3. If it provide for the payment of any claim known to the 
assignor to be false or fraudulent, or for the payment of more upon 
any claim than is known to be justly due from the assignor. 

4. If it reserve any interest in the assigned property, or in any 
part thereof, to the assignor, or for his benefit, before all his existing 
debts are paid. 

5. If it confer upon the assignee any power which, if exercised, 
might prevent or delay the immediate conversion of the assigned 
property to the purposes of the trust. 

6. If it exempt him from liability for neglect of duty or miscon- 
duct. 



130 California. [Part 3. 

The assignment must be in writing, signed, duly acknowledged 
and recorded. 

Within twenty days after an assignment is made, an inventory 
must be filed with the County Recorder, duly sworn to. 

Within thirty days after the date of an assignment, the assignee 
must enter into a bond for the faithful discharge of the trust, in a 
sum to be fixed by the County Judge. 

Property exempt from execution, and insurance upon the life of 
the assignor, do not pass to the assignee unless specially mentioned 
in the assignment. 

An assignment executed and recorded cannot afterward be can- 
celed or modified by the parties thereto, without the consent of every 
creditor affected thereby. 



CHAPTEE XLIII. 

COMMISSION MERCHANTS, ETC. 

Every commission merchant, broker, agent, factor, or consignee, 
who shall willfully and corruptly make, or cause to be made, to 
the principal or consignor of such commission merchant, agent, 
broker, factor, or consignee, a false statement concerning the price 
obtained for, or the quality or quantity of any property consigned 
or intrusted to such commission merchant, agent, broker, factor, or 
consignee, for sale, shall be deemed guilty of a misdemeanor, and, 
on conviction thereof, shall be punished by fine not exceeding five 
hundred dollars, or imprisonment in the County Jail not exceeding 
six months, or by both such fine and imprisonment. 



Chap. 44.] CALIFORNIA. 131 



CHAPTER XLIV. 



INSOLVENCY ACT OF 1880. 



General Subject of the Act. 

Section 1. Every insolvent debtor may, upon compliance with 
the provisions of this Act, be discharged from his debts and liabili- 
ties. This Act shall be known and may be cited as the Insolvent 
Act of eighteen hundred and eighty. 

Voluntary Insolvency. 

Sec. 2. An insolvent debtor, owing debts exceeding in amount 
the sum of three hundred dollars, may apply by petition to the Su- 
perior Court of the county, or city and county, in which he has re- 
sided for six months next preceding the filing of his petition, to be 
discharged from his debts and liabilities. In his petition he shall set 
forth his place of residence, his inability to pay all his debts in full, 
his willingness to surrender all his estate and effects for the benefit 
of his creditors, and his desire to obtain a discharge from his debts 
and liabilities, and shall annex thereto a schedule and inventory, 
and valuation, in compliance with the provisions of this Act. The 
filing of such petition shall be an act of insolvency, and thereupon 
such petitioner shall be adjudged an insolvent debtor. 

Sec. 3. Schedule, what to contain. — Said schedule must contain a 
full and true statement of all his debts and liabilities, exhibiting to 
the best of his knowledge and belief to whom said debts or liabilities 
are due, the place of residence of his creditors, and the sum due to 
each; the nature of the indebtedness or demand, whether founded 
on written security, obligation, contract, or otherwise ; the true 
cause and consideration thereof, and the time and place where said 
indebtedness accrued, and a statement of any existing pledge, lien, 
mortgage, judgment, or other security for the payment of the same. 

Sec. 4 Inventory. — Said inventory must contain an accurate de- 



132 California. [Part 3. 

scription of all the estate, both real and personal, of the petitioner, 
including his homestead, if any, and all property exempt by law 
from execution, and where the same is situated, and all incumbrances 
thereon. 

Sec. 5. Affidavit. — The petition, schedule, and inventory must be 
verified by the affidavit of the petitioner annexed thereto, and shall 
be in form substantially as follows : I, — , do solemnly swear 

that the schedule and inventory now delivered by me contain a full, 
perfect, and true discovery of all the estate, real, personal, and 
mixed, goods and effects, to me in any way belonging ; all such 
debts as are to me owing, or to any person or persons in trust 
for me,, and all securities and contracts, and contracts whereby 
any money may hereafter become payable, or any benefit or ad- 
vantage accrue to me or to my use, or to any other person or per- 
sons in trust for me ; that I have no lands, money, stock, or estate, 
reversion or expectancy besides that set forth in my schedule and 
inventory ; that I have, in no instance, created or acknowledged a 
debt for a greater sum than I honestly and truly owe ; that I have 
not, directly or indirectly, sold, or otherwise disposed of, or con- 
cealed any part of my property, effects,. or contracts; that I have 
not in any *way compounded with my creditors whereby to secure 
the same, or to receive, or to expect any profit or advantage there- 
from, or to defraud or deceive any creditor to whom I am indebted 
in any manner. So help me God. 

Sec. 6. Order of Court. — Upon receiving and filing such petition, 
schedule, and inventory, the Court shall make an order declaring 
the petitioner insolvent, and directing the Sheriff of the county to 
take possession of all the estate, real and personal, of the debtor, 
except such as may be by law exempt from execution, and of all 
his deeds, vouchers, books of account and papers, and to keep the 
same safely until the appointment of an assignee. Said order shall 
further forbid the payment of any debts and the delivery of any 
property belonging to such debtor, to him, or for his use, and the 
transfer of any property by him ; and shall further appoint' a time 
and place for a meeting of the creditors, to prove their debts, and 
choose one or more assignees of the estate, which shall not be less 
than thirty days after the making of said order, and shall designate 
a newspaper or newspapers of general circulation in which publica- 



Chap. 44.] California. 133 

tion thereof shall be made. Upon the granting of said order, all 
proceedings against the said insolvent shall be stayed. 

Sec. 7. Publication. — A copy of said order shall immediately be 
published by the Clerk of said Court in the newspaper or newspapers 
designated therein, as often as the newspaper is printed before the 
meeting of creditors, and be served by the Clerk forthwith by 
United States mail, postage prepaid, or personally, on all creditors 
named in the schedule. The order of adjudication shall direct the 
publication thereof in a newspaper published in the county, or city 
and county, in which the petition is filed, if there be one, and if 
there be none, in a newspaper published nearest to such county, or 
city and county ; provided, that no order of adjudication upon 
creditors' petition shall be entered, unless there first be deposited 
with the Clerk, in addition to the usual cost of commencing said 
proceedings, a sum of money sufficient to defray the cost of the pub- 
lication ordered by the Court, and ten cents for each copy, to be 
mailed to or served on the creditors, which latter sum is hereby con- 
stituted the legal fee of the Clerk for the mailing or service required 
in this section. 

INVOLUNTARY INSOLVENCY. 

Sec. 8. An adjudication of insolvency may be made on the peti- 
tion of five or more creditors, residents of this State, whose debts or 
demands accrued in this State, and amount in the aggregate to not 
less than five hundred dollars ; -provided, that said creditors, or either 
of them, have not become creditors by assignment within thirty days 
prior to the filing of said petition. Such petition must be filed in 
the Superior Court of the county, or city and county, in which the 
debtor resides or has his place of business, and must be verified by 
at least three of the petitioners, setting forth that such person is 
about to depart from the State, with intent to defraud his creditors ; 
or being absent from the State with such intent, remains absent ; 
or conceals himself to avoid the service of legal process ; or conceals, 
or is removing any of his property, to avoid its being attached or 
taken on legal process ; or being insolvent, has suffered his property 
to remain under attachment, or legal process, for four days ; or has 
confessed, or offered to allow judgment in favor of any creditors ; or 
willfully suffered judgment to be taken against him by default ; or 



134 California. [Part 3 

has suffered, or procured his property to be taken on legal process, 
with intent to give a preference to one or more of his creditors ; or 
has made any assignment, gift, sale, conveyance, or transfer of his 
estate, property, rights, or credits, with intent to delay, defraud, or 
hinder his creditors, or in contemplation of insolvency, has made any 
payment, gift, grant, sale, conveyance, or transfer of his estate, prop- 
erty, rights or credits ; or has been arrested and held in custody by 
virtue of any civil process of Court founded on any debt or demand, 
and such process remains in force, and not discharged by payment, 
or otherwise, for a period of four days ; or being a merchant or 
tradesman, has stopped or suspended, and not resumed payment 
within a period of forty days after maturity of any written acknowl- 
edgment of indebtedness, unless the party holding such acknowledg- 
ment has, in writing, waived the right to proceed under this subdi- 
vision; or being a bank or banker, agent, broker, factor, or commis- 
sion merchant, has failed for forty days to pay any moneys deposited 
with or received by him in a fiduciary capacity, upon demand of pay- 
ment, except savings and loan banks, or associations who loan 
the money of their stockholders and depositors on real estate, and 
provide in their by-laws for the re-payment of such deposits. The 
petitioners may, from time to time, amend and correct the petition, 
so that the same shall conform to the facts, by leave of the Court 
before which the proceedings are pending, but nothing in this sec- 
tion shall be construed to invalidate any loan of actual value, or the 
security therefor, made in good faith upon a security taken in good 
faith on the occasion of the making of such loan ; the said petition shall 
be accompanied by a bond with two sureties in the penal sum of at 
least five hundred dollars, conditioned that if the debtor should not 
be declared an insolvent, the petitioners will pay all costs and dam- 
ages, including a reasonable attorney's fee, that the debtor may sus- 
tain by reason of the filing of said petition. The Court may, upon 
motion, direct the filing of an additional bond with different sureties 
when deemed necessary. 

Sec. 9. Order Court. — Upon the filing of such creditors' petition, 
the Court shall issue an order requiring such debtor to show cause, 
at a time and place to be fixed by said Court, why he should not be 
adjudged an insolvent debtor, and at the same time, or thereafter, 
upon good cause shown therefor, said Court may make an order for- 



Chap. 44.] CALIFORNIA. i35 

bidding the payment of any debts, and the delivery of any property 
belonging to such debtor to him or for his use, or the transfer of any 
property by him. 

Sec. 10. Copy of petition to be served on debtor. — A copy of said 
petition, with a copy of the order to show cause, shall be served on 
the debtor, in the same manner as is provided by law for the service 
of summons in civil actions, but such service shall be made at least 
ten days before the time fixed for the hearing; provided, that if, for 
any reason, the service is not made, the order may be renewed, and 
the time and place of hearing changed, or by a supplemental order 
by the Court, or if such debtor can not be found, or his place of abode 
ascertained, service shall be made by publication, as is provided in 
the Code of Civil Procedure for service of summons by publication. 

Sec. 11. Demurrer. — At the time fixed for the hearing of said 
order to show cause, or such other time as it may be adjourned to, 
the debtor may demur to the petition for the same causes as is pro- 
vided for demurrer in other cases by the Code of Civil Procedure. 
[See elsewhere.] If the demurrer be overruled, the debtor shall 
have ten days thereafter in which to answer the petition. If the 
debtor answer the petition, such answer shall contain a specific denial 
of the material allegations of the petition controverted by him, and 
shall be verified in the same manner as pleadings in civil actions ; 
and the issues raised thereon may be tried with or without a jury, 
according to the practice provided by law for the trial of civil actions. 

Sec. 12. Court to require debtor to file schedide, etc.—li the re- 
spondent shall make default, or if, after a trial, the issues are found 
in favor of the petitioners, the Court shall make an order adjudging 
that said respondent is, aiid was at the time of filing the petition, an 
insolvent debtor, and shall require said debtor, within such time as 
the Court may designate, to file in Court the schedule and inventory 
provided for in sections three and four of this Act ; and thereupon 
all proceedings shall be had in said matter in the same manner as if 
said debtor had voluntarily filed his petition. 

Sec. 13. Proceedings, when dismissed. — If, upon such hearing or 
trial, the issues are found in favor of the respondent, the proceedings 
shall be dismissed, and the respondent shall recover costs from the 
petitioning creditors in the same maimer as on final judgment in 
civil actions. 



136 California. [Part 3. 

Sec. li. Failure to appear after service, etc. — -If the debtor has 
failed to appear after service, personally or by publication, or is ab- 
sent, or can not be found, the schedule and inventory may be pre- 
pared by the Sheriff, or by the assignee, from the best information 
he can obtain. 

Assignees. 

Sec. 1 5. Election of — Bond. — At a meeting of the creditors, in open 
Court, those having proven their claims, by filing a verified statement 
showing the amount, nature and security, if any, shall proceed to the 
election of one assignee. The assignee shall be a resident of the 
comity where the insolvent resides, or where he has carried on his 
business. In electing an assignee, the opinion of the majority in 
amount of claims shall prevail. The Clerk of the Court shall keep 
a minute of the deliberations of said creditors, and of the election 
and appointment of an assignee, and enter the same upon the records 
of the Court. The assignee shall file, within five days, unless the 
time be extended by the Court, with the Clerk, a bond, in an amount 
to be fixed by the Court, to the State of California, with two or 
more sufficient sureties, approved by the Court, and conditioned for 
the faithful performance of the duties devolving upon him. The 
bond shall not be void upon the first recovery, but may be sued upon 
from time to time by any creditor aggrieved, in his own name, until 
the whole penalty is exhausted. The sureties on such bond may be 
required to justify, upon the application of any party interested, in 
the same manner as bail upon arrest in civil cases. 

Sec. 16. Assignee, when appointed. — If, on the day appointed 
for the meeting, the creditors do not attend, or refuse to elect an as- 
signee ; or if, after election, the assignee shall fail to qualify within 
the proper time, it shall be lawful for the Court before which the 
said meeting may take place, to appoint an assignee and fix the 
amount of his bond. 

Sec. 17. Assignment. — As soon as an assignee is appointed and 
qualified, the Clerk of the Court shall, by an instrument under his 
hand, and seal of the Court, assign and convey to the assignee all 
the estate, real and personal, of the debtor, with all his deeds, books 
and papers relating thereto, and such assignment shall relate back to 
the commencement of the proceedings in insolvency, and by opera- 



Chap. 44.] CALIFORNIA. 137 

tion of law shall vest the title to all such property and estate, both 
real and personal, in the assignee, although the same is then attached 
on mesne process, as the property of the debtor, and shall dissolve 
any attachment made within one month next preceding the com- 
mencement of the insolvency proceedings. Such assignment shall 
operate to vest in the assignee all the estate of the insolvent debtor 
not exempt by law from execution. 

Sec. 18. Authority of assignee. — The assignee shall have the 
right to recover all the estate, debts and effects of said insolvent. If, 
at the time of the commencement of proceedings in insolvency, an 
action is pending in the name of the debtor, for the recovery of a 
debt or other thing which might or ought to pass to the assignee by 
the assignment, the assignee shall be allowed and admitted to prose, 
cute the action, in like manner and with like effect as if it had been 
originally commenced by him. -In suits prosecuted by the assignee, 
a certified copy of the assignment made to him shall be -conclusive 
evidence of his authority to sue. 

Sec. 19. Recording assignment. The assignee shall, within one 
month after the making of the assignment to him, cause the same to 
be recorded in every county, or city and county, within this State, 
where any lands owned by the debtor are situated, and the record of 
such assignment, or a duly, certified copy thereof, shall be conclusive 
evidence thereof in all Courts. 

Sec. 20. Resignation of Assignee. — Any assignee may at any 
time, by writing tiled in Court, resign his appointment, having first 
settled his accounts, and delivered up all the estate to such successor 
as the Court shall appoint ; provided, that if, in the discretion of the 
Court, the circumstances of the case require it, upon good cause be- 
ing shown, the Court may, at any time before such settlement of ac- 
count and delivery of the estate shall have been completed, revoke 
the appointment of such assignee and appoint another in his stead. 
The liability of the outgoing assignee, or of the sureties on his bond, 
shall not be in any manner discharged, released, or.affected by such 
appointment of another in his stead. 

Sec. 21. Powers of assignee. — The said assignee shall have 
power — 

1. To sue in his own name and recover all the estate, debts and 
things in action, belonging or due to such debtor, and no set-off or 



138 California. [Part 3. 

counter-claim shall be allowed in any such suit, for any debt, unless 
it was owing to such creditor by such debtor at the time of the ad- 
judication of insolvency ; 

2. To take into his possession all the estate of such debtor except 
property exempt by law from execution, whether attached or deliv- 
ered to him or afterwards discovered, and all books, vouchers, evi- 
dence of indebtedness, and securities belonging to the same.; 

3. In case of a non-resident, absconding, or concealed debtor, to 
demand and receive of every Sheriff who shall have attached any of 
the property of such debtor, or who shall have in his possession any 
moneys arising from the sale of such property, all such property and 
moneys, on paying him his lawful costs and charges for attaching 
and keeping the same \ 

4. From time to time to sell at public auction all the estate, real 
and personal, vested in him as such assignee, which shall come to his 
possession and as ordered by the Court ; 

5. On such sales to execute the necessary conveyances and bills of 



6. To redeem all valid mortgages and conditional contracts, and 
all valid pledges of personal property, and to satisfy any judgments 
which may be an incumbrance on any property sold by him, or to 
sell such property subject to such mortgage, contracts, pledges, or 
judgments ; 

7. To settle all matters and accounts between such debtor and his 
debtors subject to the approval of the Court; 

8. Under the order of the Court appointing him, to compound 
with any person indebted to such debtor, and thereupon to discharge 
all demands against such person ; 

9. To have and recover from any person receiving a conveyance, 
gift, transfer, payment, or assignment, made contrary to any pro- 
vision of this Act, the property thereby transferred or assigned, or 
in case a redelivery of the property can not be had, to recover the 
value thereof, with damages for the detention. 

Sec. 22. Insolvent to deliver books, etc., to tlte Court. — -The in- 
solvent shall, either before or on the day appointed for the meeting 
of creditors, deliver to the Court all the commercial or account 
books he may have kept, which books shall be deposited in the 
Clerk's office of said Court. Said insolvent shall also deliver to the 



Chap. 33.] California. 139 

Court, at the same time, all vouchers, notes, bonds, bills, securities, 
or other evidences of debt, in any manner relating to or having any 
bearing upon or connection with the property surrendered by said 
debtor, and ail such papers or securities shall be deposited in the 
Clerk's office of said Court, and the Clerk shall hand them over, to- 
gether with the books of the insolvent, to the assignee who may be 
appointed. 

Sec. 23. Embezzlement. — If any person, before the assignment is 
made, having notice of the commencement of proceedings in in- 
solvency, embezzles or disposes of any of the moneys, goods, chat- 
tels, or effects of the insolvent, he is chargeable therewith, and 
liable to an action by the assignee for double the value of the prop- 
erty so embezzled or disposed of, to be recovered for the benefit of 
the estate. 

Sec. 24. Penalties. — The same penalties, forfeitures, and pro- 
ceedings by citation, examination, and commitment, shall apply on 
behalf of an assignee against persons suspected of having concealed, 
embezzled, conveyed away, or disposed of any property of the debtor, 
or of having possession or knowledge of any deeds, conveyances, 
bonds, contracts, or other writings which relate to any interest of 
the debtor in any real or personal estate, as provided in the case 
of the estates of deceased persons in sections one thousand four hun- 
dred and fifty-nine, one thousand four hundred and sixty, and one 
thousand four hundred and sixty-one of the Code of Civil Pro- 
cedure. 

Sec. 25. Estate to be converted into money. — The assignee shall 
as speedily as possible convert the estate, real and personal, into 
money. He shall keep a regular account of all moneys received by 
him as assignee, to which every creditor or other person interested 
therein may, at all reasonable times, have access. No private sale 
of any property of the estate of an insolvent debtor shall be valid, 
unless made under the order of the Court upon a petition in writing, 
which shall set forth the facts showing the sale to be necessary. 
Upon filing the petition, notice of at least ten days shall be given by 
publication and mailing, in the same manner as is provided in section 
seven of this Act. If it appears that a private sale is for the best 
interests of the estate, the Court shall order it to be made. 

Sec. 26. When Court may order. — When it appears to the satis- 



140 California. [Part 3 

faction of the Court that the estate of the debtor, or any part thereof, 
is of a perishable nature, or is liable to deteriorate in value, or is 
disproportionately expensive to keep, the Court may order the same 
to be sold in such manner as may be deemed most expedient, under 
the direction of the Sheriff or assignee, as the case may be, who shall 
hold the funds received in place of the property sold until the further 
order of the Court. 

Sec. 27. Outstanding debts. — Outstanding debts, or other prop- 
erty due or belonging to the estate, which cannot be collected and 
received by the assignee without unreasonable or inconvenient delay 
or expense, may be sold and assigned in like manner as the remain- 
der of the estate. 

Sec. 28. Expenses of assignees. — -Assignees shall be allowed all 
necessary expenses in the care, management, and settlement of the 
estate, and shall collectively be entitled to charge and receive for 
their services commissions upon all sums of money coming to their 
hands and accounted for by them, as follows : For the first thou- 
sand dollars, at the rate of seven per cent.; for all above that sum 
and not exceeding ten thousand dollars, at the rate of five per cent.; 
and for all above that sum, at the rate of four per cent. 

Sec. 29. Assignee to make exhibit to the Court. — At the expira- 
tion of three months from the appointment of the assignee in any 
case, or as much earlier as the Court may direct, the assignee shall 
exhibit to the Court and to the creditors, and file just and true ac- 
counts of all his receipts and payments verified by his oath, and a 
statement of the property outstanding, specifying the cause of its 
outstanding, also what debts or claims are yet undetermined, and 
stating what sum remains in his possession ; and thereupon a divi- 
dend shall be made, unles.s for cause the Court shall otherwise order. 
Thereafter further accounts, statements, and dividends shall be made 
in like manner as often as occasion requires. 

Sec. 30. Court may order assignee to file account. — The Court 
shall at any time, upon the motion of any two or more creditors, 
require the assignee to file his account, and if he has funds subject 
to distribution he shall be required to distribute them without delay 

Sec. 31. Creditors to share pro rata. — Ail creditors whose debts 
are duly proved and allowed shall be entitled to share in the property 
and estate pro rata without priority or preference whatever, other 



Chap. 44.] CALIFORNIA. 141 

than as provided in this Act, and in section one thousand two hun- 
dred and four of the Code of Civil Procedure ; provided, that any 
debt proved by any person liable as bail surety, guarantor, or other- 
wise, for the debtor, shall not be paid to the person so proving the 
same until satisfactory evidence shall be produced of the payment of 
such debt by such person so liable ; and the share to which such 
debt would be entitled may be paid into Court, or otherwise held for 
the benefit of the party entitled thereto, as the Court may direct. 
[Section 1204 of the Civil Code declares wages to the amount of 
$100 for services performed within sixty days to be preferred.] 

Sec. 32. No dividend already declared shall be distributed by 
reason of debts being subsequently proved, but the creditors proving 
such debts shall be entitled to a dividend equal to those already re- 
ceived by the other creditors, before any further dividend is made to 
the latter ; provided, the failure to prove such claim shall not have 
resulted from his own neglect. 

Sec. 33. Discharge of assignee — Should the assignee refuse or 
neglect to render his accounts, as required by sections thirty and 
thirty-one, or pay over a dividend when he shall have, in the opinion 
of the Court, sufficient funds for that purpose, the Court shall imme- 
diately discharge such assignee from his trust, and shall have power 
to appoint another in his place. The assignee so discharged shall 
forthwith deliver over to the assignee appointed by the Court all 
the funds, property, books, vouchers, or securities belonging to the 
insolvent, without charging or retaining any commission or compen- 
sation for his personal services. 

Sec. 34. Final account of assignee — Preparatory to the final ac- 
count and dividend, the assignee shall submit his account to the 
Court and file the same, and shall, at the time of filing, accompany 
the same with an affidavit that notice by mail has been given to all 
creditors who proved their claims ; that he will apply for a settle- 
ment of his account, and for a discharge from all liability as assignee 
at a time specified in such notice, which time shall be not less than ten 
nor more than twenty days from such filing. At the hearing the 
Court shall audit the account, arid any person interested may ap- 
pear and file exceptions in writing, and contest the same. The Court 
thereupon shall settle the account and order a dividend of any por- 
tion of the estate remaining undistributed, and shall discharge the 



142 California. [Part 3. 

assignee, subject to compliance with the order of the Court, from all 
liability, as assignee, to any creditor of the insolvent. 

Partnerships and Corporations. 

Section 35. Two or more persons who are partners in business 
may be adjudged insolvent, either on the petition of such partners 
or any one of them, or on the petition of five or more creditors of 
the partnership, in which case an order shall be issued in the manner 
provided by this Act, upon which all the joint stock and property of 
the partnership, and also all the separate estate of each of the part- 
ners shall be taken, excepting such parts thereof as ma}^ be exempt 
by law, and all the creditors -of the company, and the separate 
creditors of each partner, shall be allowed to prove their respective 
debts ; and the assignee shall be chosen by the creditors of the co- 
partnership, and shall also keep separate accounts of the joint stock 
or property of the copartnership, and of the separate estate of each 
member thereof, and, after deducting out of the whole amount re- 
ceived by such assignee, the whole amount of the expenses and dis- 
bursements, the net proceeds of the joint stock shall be appropriated 
to pay the creditors of the copartnership, and the net proceeds of 
the separate estate of each partner shall be appropriated to pay his 
separate creditors ; and if there shall be any balance of the separate 
estate of any partner, after the payment of his separate debts, such 
balance shall be added to the joint stock for the payment of the 
joint creditors ; and if there shall be auy balance of the joint stock, 
after the, payment of the joint debts, such balance shall be divided 
and appropriated to and among the separate estate of the several part- 
ners according to their respective right and interest therein, and as it 
would have been' if the partnership had been dissolved without any 
insolvency ; and the sum so appropriated to the separate estate of 
each partner shall be applied to the payment of his separate debts, 
and the certificate of discharge shall be granted or refused to each 
partner as the same would or ought to be if the proceedings had 
been by or against him alone under this Act ; and in all other 
respects the proceedings as to partners shall be conducted in the like 
manner as if they had been commenced and prosecuted by or against 
one person alone. If such copartners reside in different counties, 



Chap. 44.] California. 143 

that Court in which the petition is first filed shall retain exclusive 
jurisdiction over the case. If the petition be filed by less than all 
the partners of a copartnership, those partners who do not join in 
the petition shall be ordered to show cause why they should not be 
adjudged to be insolvent in the same manner as other debtors are 
required to show cause upon a creditor's petition, as in this Act pro- 
vided. 

Sec. 36. Applicable to corporations — The provisions of this Act 
shall apply to corporations, and upon the petition of any officer of 
any corporation, duly authorized by the vote of the Board of 
Directors or Trustees, at a meeting specially called for that purpose, 
or by the assent in writing of a majority of the Directors or Trustees, 
as the case may be, or upon a creditor's petition made and presented 
in the manner provided in respect to debtors, the like proceedings 
shall be had and taken as are provided in the case of debtors. All 
the provisions of this Act, which shall apply to the debtor, or 
set forth his duties, examination, and liabilities, or prescribe penal- 
ties, or relate to fraudulent conveyances, payments, and assignments, 
apply to each and every officer of any corporation in relation to the 
same matters concerning the corporation. Whenever any corpora- 
tion is declared insolvent, all its property and assets shall be dis- 
tributed to the creditors ; but no discharge shall be granted to . any 
corporation. 

Proof of Debts. 

Sec. 37. All debts due and payable from the debtor at the time 
of the adjudication of insolvency, and all debts then existing but 
not payable until a future time, a rebate of interest being made, 
when no interest is payable by the terms of the contract, may be 
proved against the estate of the debtor. 

Sec. 38. Proof of demands against the debtor. All demands 
against the debtor for or on account of any goods or chattels wrong- 
fully taken, converted, or withheld by him, may be proved and al- 
lowed as debts to the amount of the value of the property so with- 
held, from the time of the conversion. 

Sec. 39. If the debtor shall be bound as indorser, surety, bail, 
or guarantor, upon any bill, bond, note, or other specialty or con- 
tract, or for any debt of another person, and his liability shall not 



144 California. [Part 3. 

have become absolute until the adjudication of insolvency, the cred- 
itor may prove the same after such liability shall have become fixed, 
and before the final dividend shall have been declared. 

Sec. 40. In all cases of contingent debts, and contingent liabili- 
ties contracted by the debtor, and not herein otherwise provided 
for, the creditor may make claim therefor and have his claim al- 
lowed, with the right to share in the dividends if the contingency 
shall happen before the order for the final dividend, or he may, at 
any time, apply to the Court to have the present value of the debt 
or liability ascertained and liquidated, which shall be done in such 
manner as the Court shall order, and shall be allowed to prove for 
the amount so ascertained. 

Sec. 41. Any person liable as bail,* surety, or guarantor, or oth- 
erwise, for the debtor who shall have paid the debt, or any part 
thereof, in discharge of the whole, shall be entitled to prove such 
debt, or to stand in the place of the creditor, if he shall have proved 
the same, although such payments shall have been made after the 
proceedings in insolvency were commenced ; and any person so 
liable for the debtor, and who has not paid the whole of said 
debt but is still liable for the same, or any part thereof, may, if the 
creditor shall fail or omit to prove such debt, prove the same in the 
name of the creditor. 

Sec. 42. Where the debtor is liable.to pay rent, or other debt fall- 
ing due at fixed and stated periods, the creditor may prove, for a pro- 
portionate part thereof up to the time of the insolvency, as if the 
same became due from day to day, and not at such fixed and stated 
periods. 

Sec. 43. In all cases of mutual debts and mutual credits between 
the parties, the account between them shall be stated, and one debt 
set off* against the other, and the balance only shall be allowed and 
paid. But no set-off or counter-claim shall be allowed of a claim in 
its nature not provable against the estate ; provided, that no set-off 
or counter-claim shall be allowed in favor of any debtor to the insol- 
vent of a claim purchased by or transferred to him after the filing of 
a petition by or against him, for the purpose of making such set-off 
or counter-claim. 

Sec. 44. When a creditor has a mortgage or pledge of real or 
personal property of the debtor, or a lien thereon, for securing the 



Chap. 44.] California. 145 

payment of a debt owing to him from the debtor, he shall be ad- 
mitted as a creditor only for the balance of the debt, after deduct- 
ing the value of such property, to be ascertained by agreement 
between him and the assignee, or by a sale thereof, to be made in 
such manner as the Court shall direct; or the creditor may release 
or convey his claim to the assignee, upon such property, and be ad- 
mitted to prove his whole debt. If the value of the property ex- 
ceeds the sum for which it is so held as security, the assignee may 
release to the creditor the debtor's right of redemption thereon on 
receiving such excess; or he may sell the property, subject to the 
claim of the creditor thereon, and in either case the assignee and 
creditor respectively shall execute all deeds and writings necessary 
or proper to consummate the transaction. If the property is not 
sold or released, and delivered up, the creditor shall not be allowed 
to prove any part of his debt. 

Sec. 45. No creditor proving his debt or claim shall be allowed 
to maintain any suit at law or in equity therefor against the 
debtor, but shall be deemed to have waived all right of action 
and suit against him, and all proceedings already commenced, 
or unsatisfied judgments already obtained thereon, shall be deemed 
to be discharged and surrendered thereby; provided, that no valid 
lien existing in good faith thereunder shall be thereby affected ; 
and furtlier provided, that a creditor proving his debt or claim shall 
not be held to have waived his right of action or suit against the 
debtor where a discharge has been refused, or the proceedings have 
determined without a discharge. And no creditor whose debt is 
provable under this Act shall be allowed, after the commencement 
of proceedings in insolvency, to prosecute to final judgment any 
action therefor against the debtor until the question of the debtor's 
discharge shall have been determined, and any such suit or proceed- 
ing shall, upon the application of the debtor, or any creditor, or of 
the assignee, be stayed to await the determination of the Court in 
insolvency on the question of discharge; provided, there be no un- 
reasonable delay on the part of the debtor, or of the petitioning 
creditors, as the case may be, in prosecuting the case to its conclu- 
sion; and provided, also, that if the amount due the creditor is in 
dispute, the suit, by leave of the Court in insolvency, may proceed 
to judgment for the purpose of ascertaining the amount due, which 



146 California. [Part 3. 

amount may be proven in insolvency, but execution shall be stayed 
as aforesaid ; provided further, that where a valid lien or attach- 
ment has been acquired or secured in any such action, and an under- 
taking been offered and accepted in lieu of such lien or attachment, 
the case may be prosecuted to final judgment for the purpose of fix- 
ing the liability of the sureties upon such undertaking ; but execu- 
tion against the insolvent upon such judgment shall be stayed. 

Sec. 46. Any person who shall have accepted any preferences, 
having reasonable cause to believe that the same was made or given 
by the debtor contrary to any provision of this Act, shall not prove 
the debt or claim, on account of which the preference was made or 
given ; nor shall he receive any dividend thereon until he shall first 
have surrendered to the assignee all property, money, benefit, or 
advantage received by him under such preference. 

Sec. 47. The Court may, upon the application of the assignee, 
or of any creditor of the debtor, or without any application, before 
or after adjudication in insolvency, examine upon oath the debtor 
in relation to his property and his estate, and any person tendering 
or making proof of claims, and may subpoena witnesses to give evi- 
dence relating to such matters. All examinations of witnesses shall 
be had and depositions shall be taken in accordance with and in the 
same manner as is provided by the Code of Civil Procedure. 

Discharge. 

Sec. 48. At any time after the expiration of three months from 
the adjudication of insolvency, the debtor may apply to the Court 
for a discharge from his debts, and the Court shall thereupon order 
notice to be given to all creditors, who have proved their debts, to 
appear, on a day appointed for that purpose, and show cause why a 
discharge should not be granted to the debtor ; said notice shall be 
given by mail and by publication at least once a week, for four 
weeks, in a newspaper published in the county, or, if there be none, 
in a newspaper published nearest such county ; provided, that no 
debts have been proven, such notice shall not be required. 

Sec. 49. No discharge shall be granted, or if granted shall be 
valid, if the debtor shall have sworn falsely in his affidavit annexed 
to his petition, schedule, or inventory, or upon any examination in 



Chap. 44.] CALIFORNIA. 147 

the course of the proceedings in insolvency, in relation to any mate- 
rial fact concerning his estate, or his debts, or to any other material 
fact ; or if he has concealed any part of his estate or effects, or any 
books or writings relating thereto ; or if he has been guilty of fraud 
or willful neglect in the care, custody, or delivery to the assignee of 
the property belonging to him at the time of the presentation of his 
petition and inventory, excepting such property as he is permitted 
to retain under the provisions of this Act, or if he has caused or per- 
mitted any loss or destruction thereof ; or if, within one month be- 
fore the commencement of such proceedings, he has procured his 
lands, goods, money, or chattels to be attached, or seized on execu- 
tion ; if he has destroyed, mutilated, altered, or falsified any of his 
books, documents, papers, writings, or securities, or has made or been 
privy to the making of any false or fraudulent entry in any book of 
account or other document with intent to defraud his creditors ; or if 
he has given any fraudulent preference contrary to the provisions of 
this Act, or made any fraudulent payment, gift, transfer, convey- 
ance, or assignment of any part of his property, or has lost any part 
thereof in gaming, or has admitted a false or fictitious debt against 
his estate, or if, having knowledge that any person has proven such 
false or fictitious debt, he has not disclosed the same to his assignee 
within one month after such knowledge ; or if being a merchant or 
tradesman he has not, subsequently to the passage of this Act, kept 
proper books of account ; or if he or any other person on his ac- 
count, or in his behalf, has influenced the action of any creditor at 
any stage of the proceedings, by any pecuniary consideration or 
obligation ; or if he has in contemplation of becoming insolvent 
made any pledge, payment, transfer, assignment, or conveyance of 
any part of his property, directly or indirectly, absolutely or condi- 
tionally, for the purpose of preferring any creditor or person having 
a claim against him, or who is or may be under liability for him, 
or for the purpose of preventing the property from coming into 
the hands of the assignee, or of being distributed under this Act in 
satisfaction of his debts ; or if he has been convicted of any misde- 
meanor under this Act, or has been guilty of fraud contrary to the 
true intent of this Act ; or in case of voluntary insolvency has re- 
ceived the benefits of this or any other Act of insolvency or bank- 
ruptcy within three years next preceding his application for dis- 



148 California. [Part 3. 

charge. And before any discharge is granted, the debtor shall take 
and subscribe an oath to the effect that he has not done, suffered, 
or been privy to any act, matter, or thing specified in this A<*t, as 
ground for withholding such discharge or as invalidating such dis- 
charge, if granted. 

Sec. 50. Opposition to discharge. — Any creditor opposing the 
discharge of a debtor shall file specifications, in writing, of the 
grounds of his opposition, and after the debtor has filed and served 
his answer thereto, which pleadings shall be verified, the Court shall 
try the issue or issues raised, with or without a jury, according to 
the practice provided by law in civil actions. 

Sec. 51. Certificate of discharge. — If it shall appear to the Court 
that the debtor has in all things conformed to his duty under this 
Act, and that he is entitled under the provisions thereof to receive a 
discharge, the Court shall grant him a discharge from all his debts, 
except as hereinafter provided, and shall give him a certificate there- 
of, under the seal of the Court, in substance as follows : In the Su- 
perior Court, of the County of , State of California. Whereas, 

has been duly adjudged an insolvent under the insolvent laws 

of this State, and appears to have conformed to all the requirements 
of law in that behalf, it is therefore ordered by the Court that said 

be forever discharged from all debts and claims, which by said 

insolvent laws are made provable against his estate, and which ex- 
isted on the day of , on which the petition for adjudica- 
tion was filed by (or against) him, excepting such debts, if any, as 
are by said insolvent laws excepted from the operation of a discharge 
in insolvency. Given under my hand, and the seal of the Court, 

this day of , a. d. 18—. Attest, , Clerk. [Seal.] 

, Judge. 

Sec. 52. Fraudulent debts, etc., not discharged. — No debt cre- 
ated by fraud or embezzlement of the debtor, or by his defalcations 
as a public officer, or while acting in a fiduciary character, shall be 
discharged under this Act, but the debt may be proved, and the div- 
idend thereon shall be a payment on account of said debt ; and no 
discharge granted under this Act shall release, discharge, or affect 
any person liable for the same debt for or with the debtor, either as 
partner, joint contractor, indorser, surety, or otherwise. 

Sec. 53. Discharge releases debtor, for what. — A discharge, duly 



Chap. 44.] California. 149 

granted under this Act, shall, with the exceptions aforesaid, release 
the debtor from all claims, debts, liabilities and demands set forth 
in his schedule, or which were or might have been proved against his 
estate in insolvency, and may be pleaded by a simple averment, that 
on the day of its date such discharge was ' granted to him, setting 
forth the same in full, and the same shall be a complete bar to all 
suits brought on any such debts, claims, liabilities, or demands, and 
the certificate shall be prima facie evidence in favor of such fact, 
and of the regularity of such discharge ; provided, however, that any 
creditor of said debtor, whose debt was proved, or provable, against 
the estate in insolvency, who shall see fit to contest the validity of 
such discharge on the ground that it was fraudulently obtained, and 
who has discovered the facts constituting the fraud subsequent to 
the discharge, may, at any time within two years after the date 
thereof, apply to the Court which granted it to set aside and annul 
the same, or if the same shall have been pleaded, the effect thereof 
may be avoided collaterally upon any such ground. 

Sec. 54. The refusal of a discharge to the debtor shall not affect 
the administration and distribution of his estate under the provisions 
of this act. 

Fraudulent Preferences and Transfers. 

Sec. 55. If any person being insolvent, or in contemplation of 
insolvency, within one month before the filing of a petition by or 
against him, with a view to give a preference to any creditor or per- 
son having a claim against him, or who is under any liability for 
him, procures any part of his property to be attached, sequestered, 
or seized on execution, or makes any payment, assignment, transfer. 
or conveyance of any part of his property, either directly or indi- 
rectly, absolutely or conditionally, the person receiving such pay- 
ment, pledge, assignment, transfer, or conveyance, or to be benefitted 
thereby, or by such attachment or seizure, having reasonable cause 
to believe that such person is insolvent, and that such attachment, 
seizure, payment, pledge, conveyance, transfer, or assignment is made 
with a view to prevent his property from coming to his assignee in 
insolvency, or to prevent the same from being distributed ratably 
among his creditors, or to defeat the object of or in any way hinder, 



150 California. [Part 3. 

impede, or delay the operation of or to evade any of the provisions 
of this Act, such transfer, payment, conveyance, pledge, or assign- 
ment is void, and the assignee may recover the property, or the value 
thereof, as assets of such insolvent debtor ; and if such sale, assign- 
ment, transfer, or conveyance is not made in the usual and ordinary 
course of business of the debtor, that fact shall be -prima facie evi- 
dence of fraud. 

Penal Clauses. 

Sec. 56. From and after the taking effect of this Act, if any 
debtor or insolvent shall, after the commencement of proceedings in 
insolvency, secrete or conceal any property belonging to his estate, 
or part with, conceal, or destroy, alter, mutilate, or falsify, or cause 
to be concealed, destroyed, altered, mutilated, or falsified, any book, 
deed, document, or writing relating thereto, or remove, or cause to 
be removed the same or any part thereof, with intent to prevent it 
from coming into the possession of the assignee in insolvency, or to 
hinder, impede, or delay his assignee in recovering or receiving the 
same, or make any payment, gift, sale, assignment, transfer, or con- 
veyance of any property belonging to his estate, with like intent, or 
shall spend any part thereof in gaming ; or shall, with intent to de- 
fraud, willfully and fraudulently conceal from his assignee, or fraud- 
ulently or designedly omit from his schedule any property or effects 
whatsoever ; or if, in case of any person having to his knowledge or 
belief proved a fake or fictitious debt" against his estate, he shall fail 
to disclose the same to his assignee within one month after coming 
to the knowledge or belief thereof ; or shall attempt to account for 
any of his property by fictitious losses or expenses ; or shall, within 
three months before the commencement of proceedings in insolvency, 
under the false pretense of carrying on business and dealing in the 
ordinary course of trade, obtain on credit from any person any goods 
or chattels, with intent to defraud ; or shall, with intent to defraud 
his creditors, within three months next before the commencement of 
proceedings in insolvency, pawn, pledge, or dispose of, otherwise 
than by bona fide transactions in the ordinary way of his trade, any 
of his goods or chattels, which have been obtained on credit and re- 
main unpaid for, he shall be deemed guilty of misdemeanor, and, 
upon conviction thereof, shall be punished by imprisonment in the 
County Jail for not less than three months nor more than two years. 



Chap. 44.] CALIFORNIA. 151 

Miscellaneous. 

Sec. 57. Death of debtor. — If any debtor shall die after the order 
of adjudication, the proceedings shall be continued and concluded in 
like manner and with like validity and effect as if he had lived. 

Sec. 58. Statute of Limitations. — Pending proceedings by or 
against any person, copartner, or corporation, no statute of limita- 
tions of this State shall run against a claim which in its nature is 
provable against the estate of the debtor. 

Sec. 59. Representation by attorney. — Any creditor, at any stage 
in the proceedings, may be represented by his attorney or duly au- 
thorized agent. 

Sec. 60. Exemptions. — It shall be the duty of the Court having 
jurisdiction of the proceedings, to exempt and set apart for the use 
and benefit of said insolvent such real and personal property as is 
by law exempt from execution ; and also a homestead in the man- 
ner as provided in section one thousand four hundred and sixty-five 
of the Code of Civil Procedure. 

Sec. 61. Commencement of Proceedings — The filing of the peti- 
tion by or against a debtor upon which an order of adjudication in 
insolvency may be made by the Court, shall be deemed to be the 
commencement of proceedings in insolvency under this Act. 

Sec. 62. Certain words defined — Words used in this Act in the 
singular include the plural, and in the plural the singular, and the 
word " debtor " includes partnerships and corporations. 

Sec. 63. Appointment of Receiver — A Receiver may be appointed 
by the Court in which an insolvent proceeding is pending before the 
election of an assignee : 

1. Upon the application of creditors where it is shown that the 
property, or any portion thereof, is in danger of being lost, removed, 
or materially injured. 

2. In all other cases where receivers are appointed by the usages 
of Courts of equity. And thereupon the appointment, oath, under- 
taking, and powers of such receiver shall, in all respects, be regu- 
lated by the general laws of the State applicable to receivers. 

Sec. 64. Application of Code of Civil Procedure—All sections 
of the Code of Civil Procedure of the State of California relating to 
contempts are hereby made applicable to all proceedings under this 



152 California. [Part 3. 

Act. An appeal shall he allowed to the Supreme Court from any 
order adjudging any person guilty of contempt of Court. 

Sec. 65. Attachment costs. — When an attachment has been made 
and is not dissolved before the commencement of proceedings in in- 
solvency, or is dissolved by an undertaking given by the defendant, 
if the claim upon which the attachment-suit was commenced is 
proved against the estate of the debtor, the plaintiff may prove the 
legal costs and disbursements of the suit, and of the keeping of the 
property, and the amount thereof shall be a preferred debt. In all 
contested matters in insolvency the Court may, in its discretion, 
award costs to either party, to be paid by the other, or to either or 
both parties, to be paid out of the estate, as justice and equity may 
require ; in awarding costs, the Court may issue execution therefor. 
In all involuntary cases under this Act, the Court shall allow the 
petitioning creditors out of the estate of the debtor; if any adjudi- 
cation of insolvency be made, as preferred claim, all legal costs and 
disbursements incurred by them in that behalf. 

Sec. 66. When Court may dismiss petition. — The Court may, 
upon the application of the debtor, if it be a voluntary petition, or 
of the petitioning creditors, if a creditor's petition, dismiss the peti- 
tion and discontinue the proceedings at any time before the appoint- 
ment of assignee ; after the appointment of assignee, no dismissal 
shall be made without the consent of all parties interested in or 
affected thereby. 

Sec. 67. Appeals. — An appeal may be taken to the Supreme 
Court in the following cases : 

1. From an order granting or refusing an adjudication of 
insolvency. 

2. Allowing or rejecting a creditor's claim, in whole or in part. 

3. Overruling a motion for a new trial. 

4. Settling an account of an assignee. 

5. Against or in favor of setting apart homestead or other prop- 
erty claimed as exempt from execution. 

6. Granting or refusing a discharge to the debtor. 

The notice, undertaking and procedure on appeal shall conform to 
the general laws of this State regulating appeals in civil cases, ex- 
cept that when the assignee has given an official undertaking and 
appeal from a judgment or order in insolvency, his official undertak- 



Chap. 45.] California. 153 

ing stands in the place of an undertaking on appeal, and the sureties 
therein are liable on such undertaking. 

Sec. 68. Conflicting Acts repealed. — All Acts and parts of Acts 
in conflict with the provisions of this Act are hereby repealed ; pro- 
vided^ however, that such repeal shall in no manner invalidate or af- 
fect any case in insolvency instituted and pending in any Court prior 
to the day when this Act shall take effect. 



CHAPTER XLV. 

LEGAL HOLIDAYS. *" 

Every Sunday, first day of January, twenty-second day of Febru- 
ary, thirtieth day of May, fourth day of July, twenty-fifth day of 
December, and every day on which an election is held throughout 
the State, and every day appointed by the President of the United 
States or by the Governor of the State for a public fast, thanksgiv- 
ing or holiday. 

If the first of January, twenty-second of February, thirtieth of 
May, fourth of July, or twenty-fifth of December, fall upon a Sun- 
day, the Monday following is a holiday. 



PART IV. 



STATE OF NEVADA 



PREPARED EXPRESSLY FOR THIS WORK BY BISHOP & SABIN, 
EUREKA, EUREKA CO., NEV. 



CHAPTER I. 

COURTS, JURISDICTION, AND TERMS OF COURTS. 

United States Courts. 

United States Circuit Court, Ninth Circuit : composed of the Dis- 
tricts of California, Nevada and Oregon. Judges — Stephen J. Field, 
Associate Justice U. S. Supreme Court ; Lorenzo Sawyer, Circuit 
Judge, of San Francisco, California ; District Judge E. W. Hillyer, 
of Carson City, Nevada; U. S. Attorney, C. S. Yarian, Reno, Ne- 
vada ; Marshal, Aug. Ash, Virginia City ; Clerk, T. J. Edwards, 
Carson City. 

Terms of U. S. Circuit Court — At Carson City, third Monday in 
March, and^rs^ Monday in November of each year. 

Terms of U. S. District Court — At Carson City, first Mondays in 
February, May and October. 

(For the jurisdiction of the United States Courts, see Part II.) 



156 xevada. [Part 4. 

State Courts. 

One Supreme Court and nine District Courts. 

The Supreme Court consists of three Judges. The oldest in com- 
mission acts as Chief Justice. Judge Wm. H. Beatty, C. J. ; Judge 
O. B. Leonard and Judge Thomas P. Hawley, Associate Justices. 
Clerk, Charles P. Bicknall. All reside at Carson City. 

Regular Terms — First Mondays of January, April, July and 
October. 

The Supreme Court shall have appellate jurisdiction in all cases 
in equity ; also in all cases at law in which is involved the title or 
right of possession to, or the possession of, real estate or mining 
claims, or the legality of any tax, impost, assessment, toll, or munici- 
pal fine, or in which the demand (exclusive of interest), or the value 
of the property in controversy, exceeds three hundred dollars; also 
in all other civil cases not included in the general subdivision of law 
and equity, and also on questions of law alone, in all criminal cases 
in which the offense charged amounts to felony. The Court shall 
also have power to issue writs of mandamus, certiorari, prohibition, 
quo warranto and habeas corpus, and also all writs necessary or 
proper to the complete exercise of its appellate jurisdiction. Each 
of the Justices shall have power to issue writs of habeas corpus to 
any part of the State, upon petition by, or on behalf of, any person 
held in actual custody, and may make such writs returnable before 
himself or the Supreme Court, or before any District Court in this 
State, or before any Judge of said Courts. 

District Courts. 

Jurisdiction. — The District Courts in the several judicial districts 
of this State shall have original jurisdiction in all cases in equity ; 
also in all cases at law which involve the title or the right of posses- 
sion to, or the possession of, real property or mining claims, or the 
legality of any tax, impost, assessment, toll, or municipal fine, and in 
all other cases in which the demand (exclusive of interest), or the 
value of the property in controversy, exceeds three hundred dollars ; 
also in all cases relating to the estates of deceased persons, and the 
persons and estates of minors and insane persons, and of the action 
of forcible entry and unlawful detainer ; and also in all criminal 



Chap. l.J NEVADA. 157 

cases not otherwise provided for by law. They shall also have final 
appellate jurisdiction in cases arising in Justice's Courts, and such 
other inferior tribunals as may be established by law. The District 
Courts, and the Judges thereof, shall have power to issue writs of 
mandamus,, injunction, quo warranto, certiorari, and all otljer writs 
proper and necessary to the complete exercise of their jurisdiction ; 
and also have power to issue writs of habeas corpus, on petition 
by, or on behalf of, any person held in custody in their respective 
districts. 



158 



NEVADA. 



[Pan 4. 



Times for Holding District Courts. 



No. of Dist. Counties Composing Dist. 



1st Dist Storev Countv 



°d Dist Washoe, Ormsby and Doug- 
las 



Terms Commence. 



1st 



Monday in January, March, June and October. 



In Washoe County : 
1st Monday, January, April and September. 

In Ormsby County : 
1st Monday, March, June and November. 

In Douglas County : 
1st Mondav, May and December. 



3d Dist Lyon and Esmeralda. 



In Lyon County : 
1st Monday, February, July and December. 

In Esmeralda County : 
1st Monday, May and October. 



4th Dist.... Humboldt Countv. 



2d Monday, February, June and October. 



In Lander County 
1st Monday, January, June and October. 

5th Dist. . . . | Lander, Nye and Churchill. . ^ ^^ ^ S^ElS November. 

In Churchill County : 
1st Monday, May and December. 



6th Dist. 



rth Dist. 



In Eureka County : 
1st Monday, February, June and September. 
Eureka, White Pine and Lin- In White Pine County : 

coin 1st Monday, April and November. 

In Lincoln County : 
1st Monday, January and August. 



Elko County 3d Monday, February, June and October. 



Justices' Courts. 



Justices of the Peace have jurisdiction in all civil cases when 
the demand, (exclusive of interest,) does not exceed three hundred 
dollars. Are always open. 



Chap. 2.] nevada. 159 



CHAPTER II. 

TIME ALLOWED TO ANSWER— SERVICE BY PUBLI- 
CATION— PLACE OF TRIAL. 



Defendant has ten days to answer summons, exclusive of day of 
service, from date of service, when served within the county ; twenty 
days when served in the district but in another county than the one 
where the action was commenced ; and in all other cases forty days, 
when personal service is had. 

Service by publication may be had on defendant, upon filing of 
proper affidavit therefor. Summons to be published once a week for 
at least one month, against defendants residing in the States of Cali- 
fornia or Oregon, and the Territories of Utah and Washington ; in 
all other cases the publication of summons to be for not less than 
three months. 

Place of Trial. 

All actions pertaining to real estate, or to the recovery thereof, or 
any interest therein, must be commenced in the county wherein the 
real estate is situated. Transitory actions follow the person. 

Provisions in Justices' Courts. 

Defendant must be sued in the township in which he lives, unless 
he is served with summons in the county-seat, or has contracted to 
perform an obligation at a particular place ; in which case he may 
be sued in the township, city, or precinct where such obligation is to 
be performed, or in the township in which he resides. Service must 
be made from one to ten days before return day of summons. 



160 xevaDa. [Part 4 

CHAPTER III. 

LIMITATION OF ACTIONS. 

Civil actions, except for recovery of real property, can only be 
commenced as follows : 

Within Six Years. — 1. Upon a judgment or decree of any Court 
of the United States, or of any State or Territory within the United 
States. 

2. Upon a contract, obligation, or liability founded upon a writ- 
ten instrument. 

Within Four Years. — 1. An action on an open account for goods, 
wares, and merchandise sold and delivered. 

2. An action for any article charged in a store account, time to 
date from date of last charge, or date of last credit. 

3. An action upon a contract, obligation, or liability, not founded 
upon an instrument in writing. 

Within Three Years. — Upon a liability created by statute, other 
than a penalty or forfeiture ; for trespass upon real property ; for 
taking, detaining, or injuring any goods or chattels ; including 
actions for the specific recovery of personal property ; for relief on 
the ground of fraud — the cause of action not deemed to have ac- 
crued until discovery by party aggrieved of facts constituting a 
fraud. 

Within Two Years. — Against a Sheriff, Coroner, or Constable, 
upon the liability incurred by the doing of an act in his official ca- 
pacity and in virtue of his office, or an omission of an official duty, 
including non-payment of money collected upon execution. Upon 
statute for a penalty or forfeiture where the action is given to an 
individual, or to an individual and the State, except when the stat- 
ute imposing it fixes a different limitation. For libel, slander, 
assault, battery, or false imprisonment. Upon statute for forfeiture 
or penalty to the State. jSgainst a Sheriff or other officer, for escape 
of a prisoner arrested or imprisoned on civil process. In case of 
mutual accounts, the statute begins to run from date of last entry 
in account of either party. 



Chap. 3.] NEVADA. 161 

Iii all other cases, within four years after cause of action accrued. 

Contracts entered into prior to March 2, 1877, are controlled by 
the provisions of the act of 1867, which provides that actions must 
be commenced : 

Within Five Years. — Upon a judgment or decree of any Court 
of the United States, or of any State or Territory within the United 
States. 

Within Four Years. — Upon any contract, obligation, or liability, 
founded upon an instrument in writing. 

Within Three Years. — As above stated. 

Within Two Years. — As above, and actions on an open account 
for goods, wares, and merchandise sold and delivered. Also an ac- 
tion for any article charged in a store account. 

General Provisions. 

Limitation does not run against a party during absence from 
State, and if when a cause of action shall accrue against a party, he 
be out of the State, the action may be commenced within the time 
limited after his return to the State. 

The statute does not run against a married woman, or a person 
under the age of twenty-one years; one insane, or imprisoned on 
criminal charge, where term of imprisonment does not extend to 
life. 

An action upon a judgment, contract, obligation, or liability, for 
the payment of money or damages obtained, made, executed, or is- 
sued out of the State, can only be commenced as follows : 

1. Within one year, when prior to the passage of the act, (March 
5, 1867) more than two and less than five years have elapsed since 
the cause of action accrued. 

2. Within six months, when prior to the passage of the act, 
more than five years have elapsed since the cause of action accrued. 

3. Within two years, in all other cases, after the cause of action 
accrued ; a right of action shall be deemed to have accrued on a 
judgment at the time of its rendition. 

When the cause of action has arisen in any other State or Terri- 
tory of the United States, or in a foreign country, and by the laws 
thereof an action cannot be maintained against a person by reason 



162 Nevada. [Part 4. 

of the lapse of time, no action thereon shall be maintained against 
him in this State. 

No acknowledgment or new promise shall take the case out of 
the statute, except it be in writing, signed by the party to be 
charged. 

Actions for recovery of possession of real estate must be com- 
menced within five years, except actions for the recovery of mining 
ground, which must be commenced within two years from time cause 
of action accrued. 



CHAPTER IV. 

ATTACHMENTS. 



Writs of attachment may be issued with summons, or at any time 
afterward : 

1. In an action upon a contract for the direct payment of money, 
made, or by the terms thereof, payable in this State, which is not se- 
cured by mortgage, lien, or pledge upon real or personal property, 
situated or being in the State ; if so secured, when such security has 
been rendered nugatory by the act of the defendant. 

2. In an action upon a contract against a defendant not residing 
in this State. 

Writ to be issued upon filing of an affidavit to be made by plain- 
tiff, or some one on his behalf, setting forth the statutory grounds for 
issuance of the writ. 

Plaintiff must give bond to secure defendant against damage 
arising from the issuance of the writ, in case the attachment is dis- 
missed, or the defendant recover in the action. 

Real and personal property, debts and credits, stocks or shares in 
any corporation, may be attached in the manner pointed out by the 
statute. 



Chap. 5.] Nevada. 163 

i 

CHAPTER V. 

ARREST IN CIVIL ACTIONS. 

The defendant may be arrested in the following cases : 

1. In an action for the recovery of money or damages, on a cause 
of action arising upon contract, express or implied, when the defend- 
ant is about to depart from the State with intent to defraud his 
creditors, or when the action is for libel or slander. 

2. In an action for a fine or penalty, or for money or property em- 
bezzled, or fraudulently misapplied or converted to his own use by a 
public officer, or an officer of a corporation, or an attorney, factor, 
broker, agent, or clerk, in the course of his employment as such, or 
by any other person in a fiduciary capacity, or for misconduct or 
neglect in office, or in professional employment, or for willful viola- 
tion of duty. 

3. In an action to recover the possession of personal property un- 
justly detained, when the property or any part thereof has been 
concealed, removed, or disposed of, so that it cannot be found or 
taken by the Sheriff. 

4. When the defendant has been guilty of a fraud in contracting 
the debt, or incurring the obligation for which the action is brought, 
or in concealing or disposing of the property, for the taking, deten- 
tion, or conversion of which the action is brought. 

5. When the defendant has removed or disposed of his property, 
or is about to do so, with intent to defraud his creditors. 

The order of arrest is only issued upon filing an affidavit and bond 
as required by statute — bond to be for a sum not less than four hun- 
dred dollars. 



164 Nevada. [Part 4. 

CHAPTER VI. 

JUDGMENTS AND JUDGMENT LIENS. 

From time judgment is docketed it becomes a lien upon all real 
property of the judgment debtor, not exempted from execution in 
the county, owned by him at the time, or which he may afterward 
acquire, until the lien expires. Lien of judgment continues for two 
years, unless the judgment be previously satisfied. Personal prop- 
erty, not exempt from execution, is only held for satisfaction of 
judgment after levy of execution thereon. 



CHAPTER VII. 

EXECUTIONS, EXEMPTIONS, SALE AND REDEMPTION. 

Execution may issue for the enforcement of a judgment at any 
time within five years after the entry thereof, and may be issued to 
the Sheriff of any county in the State in proper cases. 

Exemptions. 

The following property of the judgment debtor is exempt from ex- 
ecution : 

1. Chairs, tables, desks, and books to the value of $100. 

2. Necessary household furniture, wearing apparel, beds, bedding, 
provisions, and firewood sufficient for one month. 

3. Farming utensils ; also, two oxen, or two horses, or two mules, 



Chap. 7.] nevadA. 165 

and their harness ; two cows, one cart or wagon ; and food for such 
oxen, horses, cows, or mules for one month ; also, all seed-grain, or 
vegetables actually provided, reserved, or on hand for the purpose of 
planting or sowing, at any time within the ensuing six months, not 
exceeding in value $400. 

4. The tools and implements of a mechanic or artisan necessary to 
carry on his trade ; the instruments and chests of a surgeon, physi- 
cian, surveyor, and dentist, necessary to the exercise of their pro- 
fession, with their scientific and professional libraries, and the li- 
braries of an attorney or counselor, and the libraries of ministers of 
the gospel. 

5. The cabin or dwelling of a miner, not exceeding in value $500 ; 
also, all tools and implements necessary for carrying on any mining 
operation, not exceeding in value $500 ; and two horses, mules, or 
oxen, with their harnesses, and food for the same for one month, 
when necessary to be used in such mining operations. 

6. Two oxen, two horses, or two mules, and their harness, and 
one cart or wagon, by the use of which a cartman, huckster, peddler, 
teamster, or other laborer, habitually earns his living ; and one 
horse, with vehicle and harness, or other equipments used by a phy- 
sician, or surgeon, or minister of the gospel in making his profes- 
sional visits, and food for such oxen, mules, or horses, for one month. 

7. One sewing-machine, not exceeding in value $150, in actual 
use by the debtor or his family. 

8. All fire-engines, hooks and ladders, and all apparatus and fur- 
niture belonging to any fire company or department. 

9. All arms, uniforms, and accoutrements required by law to be 
kept by any person. 

10. All court-houses, jails, public offices and buildings, lots, grounds, 
and personal property ; the fixtures, furniture, books, papers and 
appurtenances belonging and pertaining to the court-house, jail, and 
public offices belonging to any county in this State ; and all ceme- 
teries, public squares, parks and places, public buildings, town halls, 
public markets, buildings for the use of the fire department and mil- 
itary organizations, and the lots and grounds thereto belonging and 
appertaining, owned or held by any town or incorporated city, or 
dedicated by such town or city to health, ornament, or public use, 
or for the use of any fire or military company organized under the 
laws of this State. 



166 Nevada. [Part 4^ 

11. None of the above articles or species of property are exempt 
from execution issued upon a judgment recovered for its price, or 
upon a mortgage thereon. 

12. The earnings of a judgment debtor arising from his personal 
services for the thirty days preceding the making of the order (in 
supplemental proceedings), to the extent of fifty dollars, are exempt, 
when it shall be made to appear by the debtor's affidavit, or other- 
wise, that such earnings are necessary for the use of a family sup- 
ported wholly or partially by his labor. 

For homestead exemption, see "Homesteads." 

Sale. 

Real property may be sold upon twenty days' notice, given as re- 
quired by law ; and personal property after five days' notice of the 
time and place of sale, as required by law. 

Redemption. 

Real estate sold upon execution or order of sale upon mortgage, 
tax sale or otherwise, may be redeemed by the judgment debtor, or 
his successors in interest in the whole or any part of the property, 
or by a creditor having a lien by judgment or mortgage upon the 
property sold, or some share or part thereof subsequent to that upon 
which the property was sold, within six months from the date of 
sale. By Act of 1879 redemption from tax sale is allowed for 
six months from time of sale. Personal property, sold upon execu- 
tion, is not subject to redemption. 



Chap. 8 and 9.] Nevada. 167 

CHAPTER VIII. 

PROCEEDINGS SUPPLEMENTARY TO EXECUTION. 

Upon return of execution unsatisfied, in whole or in part, issued 
upon any judgment, the defendant maybe required to appear before 
the Court and answer under oath concerning his property. 



CHAPTER IX. 

SECURITY FOR COSTS. 

When plaintiff is a non-resident, or is a foreign corporation, secu- 
rity for costs may be required. 



168 Nevada. [Part 4 



CHAPTER X. 



APPEALS. 

An appeal from a judgment rendered in a Justice's Court may be 
taken to the District Court within thirty days after entry of judg- 
ment, upon filing a bond with two sufficient sureties for double the 
amount of judgment and costs, in case stay of execution is de- 
manded. 

An appeal may be taken from the District to the Supreme Court : 

1. From a final judgment in action or special proceeding com- 
menced in the Court in which the judgment is rendered, within one 
year after the rendition of judgment. 

2. From an order granting or refusing a new trial, from an order 
granting or dissolving an injunction, and from an order refusing to 
grant or dissolve an injunction, and from any special order made 
after the final judgment, within sixty days after the order is made 
and entered in the minutes of the Court. 

3. From an interlocutory judgment or order in cases of partition 
which determines the rights of the several parties, and directs parti- 
tion, sale, or division to be made, within sixty days after the rendi- 
tion of the same. 

In all cases of appeal to the Supreme Court, a bond must be filed 
in the sum of $300 for. payment of costs of appeal ; and in case a 
stay of execution is demanded, then an additional bond must be filed 
in a sum for double the amount of the judgment and costs. Bonds 
to be given by appellant, and to be executed by two or more sureties, 



Chap. 11.] Nevada. 169 

CHAPTER XI. 

ESTATES OF DECEASED PERSONS. 



Claims against estates of deceased persons must be presented, 
proved, and allowed within ten months after the first publication of 
administrators or executor's notice to creditors, excepting claims of 
persons who are non-residents of the State, who have not had actual 
notice ; they may present their claims at any time before distribu- 
tion of estate. Claims may be verified by residents before any offi- 
cer authorized to administer oaths within the State. An affidavit 
taken before a Justice of the Peace of any other county in the State 
except the one where the administrator or executor reside, must, to 
entitle it to be used or filed, contain a certificate of the Clerk of the 
county where such Justice resides, reciting the facts that said Justice 
is duly commissioned and acting as such Justice of the Peace ; that 
the signature of such Justice is genuine, and that full faith and credit 
are due to all his official acts. 

Affidavits to correctness of accounts and claims, when made out 
of the State of Nevada, must, to insure their reception, be verified 
before some Judge of a Court, having a seal, under the seal thereof • 
or a Commissioner of Deeds, duly commissioned and qualified, of 
the State of Nevada ; or before a Notary Public, whose official charac- 
ter is duly certified to by the Secretary of State or Territory in 
which he and the party making proof reside. 

Time in which the estate must be settled not limited by statute; 
it is subject to the order of the Court. 

District Courts have sole jurisdiction of all original proceedings 
in probate matters. 



170 Nevada. [Part 4. 

CHAPTER XII. 

HOMESTEADS. 



The homestead of a judgment debtor, consisting of a quantity of 
land, together with the dwelling-house thereon, and its appurte- 
nances, not exceeding in value five thousand dollars, to be selected 
by husband and wife, or either or them, or other head of the family, 
is exempt from forced sale on execution or other process from any 
Court. 

Homesteads are declared as follows : 

The selection to be made by either the husband or wife, or both 
of them, or other head of a family, declaring their intention in writ- 
ing to claim the same as a homestead. The same to be duly acknowl- 
edged and recorded as conveyances affecting real estate. 

Declaration of intention to claim and hold a homestead may be 
made at any time prior to sale, on execution or other process, except- 
ing on sale of premises on foreclosure of mortgage upon the pre- 
mises executed by husband and wife ; or where the judgment is for 
the purchase price of the property claimed as a homestead. This ex- 
emption does not extend to any mechanics, laborers or vendor's lien 
upon the premises. 

The homestead may be abandoned by a declaration in writing, 
signed and acknowledged by husband and wife, and recorded in the 
office of the County Recorder, in the same manner as the declaration 
to claim the same is required to be acknowledged and recorded. On 
the death of husband or wife, the homestead and other property exempt 
from sale on execution is required to be set apart by the Court, for 
the benefit of the surviving husband or wife, and his or her legitimate 
children. 

In cases where homestead property is appraised at a sum exceed- 
ing five thousand dollars, the same may be sold, and the sum realized 
on sale in excess of five thousand dollars and costs pass to judgment 
creditor. 



Chap. 13.] Nevada. 171 

CHAPTER XIII. x 

OF WITNESSES AND DEPOSITIONS. 

\ 

Parties to the action are not excluded from being witnesses upon 
the ground of interest, except — 

1. That no party to an action or proceeding is allowed to testify 
therein, when the opposite party is the representative of a deceased 
person, when the facts to be proved transpired before the death of 
such deceased person. 

2. Persons convicted of felony, unless pardoned, or the judgment 
is reversed on appeal, cannot be witnesses. 

3. Attorneys or counselors cannot, except by consent of their client, 
be examined as to any confidential communications made to them in 
the course of their professional employment, and the like rule ap- 
plies to physicians, surgeons, clergymen or priests, with respect to 
confidential communications made to them in their professional 
capacity. 

4. Husband or wife cannot be witnesses for or against each other, 
except in actions brought by one against the other. 

5. Public officers cannot be examined as witnesses in reference to 
communications made to them in official confidence, when the public 
interest would, by such disclosures, be injured. 

6. Laws relative to the attestation of instruments required to be 
attested are reserved from the operation of the statute allowing par- 
ties in interest to testify. 

Negroes can testify in all cases where whites are permitted to act 
as witnesses. 

The testimony of a witness in this State may be taken in an ac- 
tion at any time after the service of the summons, or the appear- 
ance of the defendant ; and in a special proceeding, after a question 
of fact has arisen therein, in the following cases : 

1. When the witness is a party to the action or proceeding, or a 
person for whose immediate benefit the action or proceeding is pros- 
ecuted or defended. 



172 Nevada. [Part 4 

2. When the witness resides out of the county in which his testi- 
mony is to be used. 

3. When the witness is about to leave the county where the ac- 
tion is to be tried, and will probably continue absent when the testi- 
mony is required. 

4. When the witness, otherwise liable to attend the trial, is, nev- 
ertheless, too infirm to attend ; or resides within the county, but 
more than fifty miles from the place of trial. 

The deposition may be taken before any Judge, or Clerk of a 
Court, or any Justice of the Peace, or Notary Public in this State, 
on serving upon the adverse party previous notice of the time and 
place of the examination, together with a copy of an affidavit show- 
ing that the case is one mentioned as above stated. Such notice 
shall be at least five days, and in addition one day for every twenty- 
five miles of the distance of the place of examination from the resi- 
dence of the person upon whom notice is served, unless, for cause 
shown, a Judge, by order, prescribe a shorter time. Either party 
may attend such examination, and put such questions, direct and 
cross, as may be proper. 

The deposition, when completed and corrected, shall be signed by 
the witness, and sealed and directed to the Clerk of the Court in 
which the action is pending, or to such person as the parties, in 
writing, may agree upon, and either delivered by the officer taking 
the same to the Clerk, or such person, or transmitted through the 
mail, or by some safe private opportunity ; and such deposition may 
be used by either party upon the trial against any party giving or 
receiving such notice, subject to all legal objections. If the parties 
attend at the examination, no objection to the form of an interroga- 
tory shall be made at the trial, unless the same was stated at the 
time of the examination. 

If the deposition to be taken be by the reason of the absence or 
intended absence from the county of the witness, or because he is 
too infirm to attend, proof, by affidavit or oral testimony, shall be 
made at the trial that the witness continues absent or infirm, to the 
best of deponent's knowledge or belief. 

Depositions thus taken may be also read in case of the death of 
the witness. 

When a deposition has been once taken, it may be read in any 



Chap. 13.] Nevada. 173 

stage of the same action or proceeding by either party, and shall 
then be deemed the evidence of the party reading it. 

Depositions Taken Out of the State. 

The testimony of a witness out of the State may be taken by 
deposition in an action at any time after the service of the sum- 
mons, or the appearance of the defendant ; and in a special proceed- 
ing, at any time after a question of . fact has arisen therein. 

The deposition of a witness out of the State shall be taken upon 
commission issued from the Court, under the seal of the Court, upon 
an order of the Judge or Court, on the application of either party, 
upon five days' previous notice to the other. It shall be issued to a 
person agreed upon by the parties, or if they do not agree, to any 
Judge or Justice of the Peace selected by the officer granting the 
commission, or to a Commissioner appointed by the Governor of this 
State to take affidavits and depositions in other States or Territo- 
ries. 

Such proper interrogatories, direct and cross, as the respective 
parties may prepare, to be settled, if the parties disagree as to their 
form, by the Judge or officer granting the order for the commission, 
at a day fixed in the order, or at the time of granting the order for 
commission, may be annexed to the commission ; or, when the par- 
ties agree to that mode, the examination may be without written in- 
terrogatories. 

The commission shall authorize the Commissioner to administer an 
oath to the witness, and to take his deposition in answer to the in- 
terrogatories, or when the examination is to be without interrogato- 
ries in respect to the questions in dispute, and to certify the deposi- 
tion to the Court, in a sealed envelope directed to the Clerk or other 
person designed or agreed upon, and forward to him by mail, or 
other usual channel of conveyance. 



174 Nevada. [Part 4. 

CHAPTER XIV. 

JUDICIAL RECORDS, HOW PROVED. 

A judicial record of this State, or the United States, or any Ter- 
ritory, may be proved by the production of the original, or a copy 
thereof, certified by the Clerk or other person having the legal cus- 
tody thereof, under the seal of the Court, to be a true copy of such 
record. 

The records and judicial proceedings of the Courts of any other 
State of the United States, or of any Territory, may be proved or 
admitted in the Courts of this State, by. the attestation of the Clerk, 
and seal of the Court annexed, if there be a seal ; together with a 
certificate of the Judge, chief Justice, or presiding Magistrate, as 
the case may be, that the said attestation is in due form. 

A judicial record of a foreign country may be proved by the pro- 
duction of a copy thereof, certified by the Clerk, with the seal of 
the Court annexed, if there be a seal — or by the legal keeper of the 
record, with the seal of his office annexed, if there be a seal — to be a 
true copy of such record, together with a certificate of a Judge of the 
Court, that the person making the certificate is the Clerk of the 
Court, or the legal keeper of the record, and in either case that the 
signature is genuine, and the certificate in due form ; and, also, to- 
gether with the certificate of the Minister or Embassador of the 
United States, or of a Consul of the United States in such foreign 
country, that there is such a Court, specifying generally the nature 
of its jurisdiction, and verifying the signature of the Clerk and 
Judge, or other legal keeper of the record. 

Second. A copy of the judicial record of a foreign country shall 
also be admissible in evidence upon proof : 

1. That the copy offered has been compared by the witness with 
the original, and is an exact transcript of the whole of it. 

2. That such original was in the custody of the Clerk of the Court 
or other legal keeper of the same ; and, 



Chap. 15.] Nevada. 175 

3. That the copy is duly attested by a seal, which is proved to 
be the seal of the Court where the record remains, if it be the rec- 
ord of a Court ; or if there be no such seal, or if it be not the record 
of a Court, by the signature of the legal keeper of the original. 



CHAPTEE XV. 

ACKNOWLEDGMENTS. 



The proof or acknowledgment of every conveyance affecting any 
real estate shall be taken by some one of the following officers : 

1. If acknowledged or proved within this State, by some Judge 
or Clerk of a Court having a seal, or some Notary Public, or Justice 
of the Peace ; provided, when the acknowledgment is taken before a 
Justice of the Peace in any other county than that in which the real 
estate is situated, the same shall be accompanied with the certificate 
of the Clerk of the District Court of such county, as to the official 
character of the Justice taking the proof or acknowledgment, and 
the authenticity of his signature. 

2. If acknowledged or proved without this State, but within the 
United States, shall be taken by some one of the following officers : 

A Judge or Clerk of a Court having a seal, or some Notary Pub- 
lic, or Justice of the Peace, or by any Commissioner appointed by 
the Governor of this State for that purpose ; provided, that when 
the acknowledgment is taken by a Justice of the Peace, the same 
shall be accompanied by the certificate of the Clerk of a Court of 
record of the county having a seal, as to the official character of the 
Justice and the authenticity of his signature. 

3. If acknowledged or proved without the United States, by 
some Judge or Clerk of any Court of any State, Kingdom or Em- 
pire having a seal, or by any Notary Public therein, or by any Min- 
ister, Commissioner, or Consul of the United States, appointed to 
reside therein. 



176 Nevada. [Part 4. 

CHAPTER XVI. 

AFFIDAVITS, BEFORE WHOM TO BE TAKEN. 

An affidavit to be used before any Court, Judge, or officer of this 
State may be taken before any Judge or Clerk of any Court, or any 
Justice of the Peace, or Notary Public in this State. 

An affidavit taken in another State, or in a Territory of the 
United States, to be used in this State, shall be taken before a Com- 
missioner appointed by the Governor of this State to take affidavits 
and depositions in such other State or Territory, or before any Judge 
of a Court of record having a seal. 

An affidavit taken in a foreign country, to be used in this State, 
shall be taken before an Embassador, Minister, or Consul of the 
United States, or before any Judge of a Court of record having a 
seal, in such foreign country. 

When an affidavit is taken before a Judge of a Court in another 
State, or in a Territory of the United States, or in a foreign country, 
the genuineness of the signature of the Judge, the existence of 
Court, and the fact that such Judge is a member thereof, shall be 
certified by the Clerk of the Court, under the seal thereof. 



Chap. 17.] Nevada. 177 

CHAPTER XVII. 

LIMITED PARTNERSHIPS 

May be formed for the transaction of mercantile, mechanical, 
mining, or manufacturing business by two or more persons, as pro- 
vided for by special statute. But nothing contained in the act 
shall authorize such partnerships for the purpose of banking or in- 
surance. 

In partnerships of this character there shall be one or more mem- 
bers of the firm to be known as general partners, and they are indi- 
vidually liable for the debts of the firm. The special partners are 
liable for the firm debts to the extent of their interest in the firm 
property or assets ; also to the extent of any sums of money by 
them received, withdrawn, or divided, with interest thereon from the 
time they were so withdrawn from the firm. 

The business of the partnership shall be conducted under a firm 
name, in which the names of the general partners only shall be in- 
serted, and the general partners only shall transact the business. If 
the name of any special partner shall be used in said firm with his 
consent or privity, or if he shall personally make any contract re- 
specting the concerns of the partnership with any person except the 
general partners, he shall be deemed and treated as a general 
partner. 



178 Nevada. [Part 4. 

CHAPTER XVIII. 

MARRIED WOMEN 

May become sole traders upon petition, and by order of District 
Court. 

When they are sole traders, they become liable for debts incurred 
in the conduct of the business authorized to be carried on by them 
as such. And their separate property, if they have any, is liable for 
such debts. 



CHAPTER XIX. 

CORPORATIONS 

May be formed for all purposes under general statute. 

Stockholders are not individually liable for any debt of the 
corporation. 



Chap. 20 and 2l.j NEVADA. 179 

CHAPTER XX. 

CHATTEL MORTGAGES. 

No chattel mortgage upon any personal property shall be valid 
for any purpose, except possession of the property mortgaged be 
given to and continuously retained by the mortgagee, except that 
growing crops may be mortgaged by the execution, acknowledg- 
ment and record of a mortgage, with delivery of possession. 



CHAPTER XXI. 

INTEREST AND USURY. 

Where there is no express contract in writing, fixing a different 
rate of interest, interest shall be allowed at the rate of ten per 
cent, per annum for all moneys after they become due upon any 
bond, bill, or promissory note, or other instrument in writing ; on 
any judgment recovered before any Court in this State, for money 
lent; money due on settlement of accounts from the day on which 
the balance is ascertained ; and for money received for the use of 
another. 

Parties may agree in writing for the payment of any rate of in- 
terest whatever upon money due, or to become due on any contract. 
Judgments rendered upon contracts shall conform thereto, and bear 
the interest agreed upon by the parties, which shall be specified in 
the judgment ; provided, only the amount of the original claim or 
demand shall draw interest after judgment, 



180 xevada. [Part 4. 

CHAPTER XXII. 

PROMISSORY NOTES AND BILLS OF EXCHANGE. 

All notes in writing made and signed by any person, whereby he 
shall promise to pay to any other person, or to his order, or to the 
order of any other person, or to the bearer, any sum of money therein 
mentioned, shall be due and payable as therein expressed, and shall 
have the same effect, and be negotiable in like manner, as inland bills 
of exchange, according to the custom of merchants. 

Days of grace are allowed upon bills and promissory notes, where 
not otherwise expressed. 

Damages for non-acceptance of bills of exchange upon the usual 
protest are as follows, when drawn or negotiated in this State : 

If such bills shall have been drawn upon any person or persons 
in any of the United States east of the Rocky Mountains, fifteen 
dollars upon the hundred upon the principal sum specified in such 
bill. 

If such bill shall have been drawn upon any person or persons in 
any part or place in Europe, or in any foreign country, twenty 
dollars upon the hundred upon the principal sum specified in such 
bill. 



Chap. 23 and 24] Nevada. l8l 

CHAPTER XXIII. 

MORTGAGES. 



A mortgage of real property, whatever its terms, shall not be 
deemed a conveyance, so as to enable the owner of the mortgage to 
recover possession of the real property without a foreclosure and 
sale. 



CHAPTER XXIY. 

JOINT DEBTORS— RELEASE OF— ACT 1866. 

Any one of two or more joint debtors, or parties jointly, or jointly 
and severally, bound by any contract or judgment, may be released 
from his, her, or its liability upon such contract or judgment by the 
creditor or creditors, and such release shall not operate, nor be held 
to operate, in law as a release to the other debtor or debtors upon 
such contract or judgment, except as to the released debtor's propor- 
tion of such liability or debt, estimated upon the basis of the num- 
ber of such debtors ; but such release shall operate only as a release 
of all liability of such debtor to the creditor in such contract or 
judgment, and as a credit upon the same of such proportionate sum 
as herein provided. 

It shall not be necessary to make the party released, as provided 
in the foregoing section, a party to any action upon such contract, 
but the creditor or creditors aforesaid may pursue the remaining 
debtors for the remaining portion of such debt, the same as though 
no such release had been made. 



182 Nevada. [Part 4. 

CHAPTER XXV. 

INSOLVENT DEBTORS— RELIEF OF— ACT OF 1865. 

Every insolvent debtor may be discharged from his debts, as pro- 
vided by the act, upon executing an assignment of all his real, per- 
sonal, or mixed property for the benefit of all his creditors, provided 
the assignment be made bona fide, and without fraud. The District 
Court alone has jurisdiction in the matter. 

The insolvent debtor is required to file a petition, in the proper 
Court, having jurisdiction where he resides, stating briefly the cir- 
cumstances which compel him to surrender his property. To the 
petition shall be annexed a schedule of all the indebtedness, of every 
kind and nature, of the petitioning debtor; and containing also a 
true and complete list of all property belonging to him, real, per- 
sonal, or mixed, and all choses in action, with the estimated value 
of the same. The petition must be verified. Upon filing the peti- 
tion and schedules, an order is made notiying creditors to appear be- 
fore the Judge or Court, upon a certain day, and show cause why the 
prayer of the petition should not be granted. Notice to creditors 
is required to be given by publication for not less than thirty days. 

The creditors, having proved their claims, may choose one or more 
assignees, not exceeding three. In appointing assignees, the major- 
ity of the creditors in sums or in claims shall prevail. The assignees 
shall give bonds in an amount to be fixed by the creditors, or by the 
Court. Assignees, under leave of the Court, may sell all of the 
property, coming to their hands, on twenty days' notice. 

All funds arising from sale of the debtor's property shall be dis- 
tributed by the Court. The assignees may sue, and be sued in re- 
spect to anything pertaining to the rights and actions of the insolvent. 

All suits brought against the insolvent anterior to the surrender 
of his property, in other counties, shall be transferred to the Court 
having jurisdiction of the failure, and where the insolvent has filed 
his schedule, and may be continued on notice and motion, against the 
assignees. When a dividend is declared, notice thereof shall be 
given to creditors. 



Chap. 25.] Nevada. 183 

Two or more creditors may demand to know if the assignees have 
any funds in their hands, and the assignees shall present their ac- 
counts and distribute any funds on hand. The assignees may be re- 
moved upon cause shown therefor. 

In case the creditors shall refuse to appoint assignees, and no cred- 
itor is willing to accept the trust, the Court shall direct the Sheriff 
of the county to take charge of the surrendered property. The in- 
solvent debtor may be cited before the Court and examined, under 
oath, in regard to his affairs. 

The insolvent debtor may be discharged only from such debts and 
liabilities as he has set forth in his schedule. 

In case of fraud on the part of the insolvent debtor, or if he shall 
be convicted of having, at any time within three months next pre- 
ceding his failures, sold, engaged, or mortgaged any of his goods and 
effects, or of having otherwise assigned, transferred, or disposed of the 
same, or any part thereof, or confessed judgment in order to give a 
preference to one or more of his creditors over others, whereby to 
receive any advantage in anticipation of his failure, to the prejudice 
of his creditors, he shall be barred the benefit of the act. 

If, after the presentation of his petition, the insolvent debtor shall 
sell, or in any manner transfer, or assign any of his property, or col- 
lect any debts due him, and shall not give a just and true account of 
the property so sold or transferred, and moneys collected, and pay 
the same over to the assignees within ten days after their appoint- 
ment, he shall be denied the benefit of the act. 

If at any time, after the debtor may have been discharged, it shall 
be made to appear that he has concealed any of his property, or has 
given a false schedule, or committed any fraud under the act, he 
shall be deemed to have forfeited all benefit of the act and his dis- 
charge shall not be a bar to any claim that may be instituted against 
him. The insolvent is entitled to the exemptions allowed by law — 
to be set apart to him by the Court. The application for the bene- 
fit of the act must be made by the insolvent in person. The Judge 
may appoint an attorney to represent creditors residing without the 
limits of the State. 

Mortgages and liens existing bona fide against the surrendered 
property, may be enforced in the same manner as though no such 
surrender had been made. 



184 Nevada. [Part 4. 

In case an insolvent has once received the benefit of the act, and 
shall during the succeeding year apply the second time, he shall not 
be permitted to receive the benefit of the act, except the appraised 
value of the property surrendered exceed one-third of his debts, un- 
less it be proven to the Judge, by the affidavit of at least two credi- 
ble and disinterested witnesses, that the debtor has really experienced 
the losses by him stated, and that said losses have reduced him to 
the condition in his petition stated. 

The assignees shall make their returns under oath. 

No assignment of any insolvent debtor, otherwise than is provided 
in this act, shall be legal or binding upon creditors. 



CHAPTER XXVI. 

TRAVELERS' LICENSE LAW. 

Statute relative to commercial travelers, drummers, etc., passed 
February, 1877. 

Every traveling merchant, hawker, or peddler, who shall carry a 
pack or vend goods, wares, or merchandise of any kind, and every 
auctioneer, shall pay for such license the sum of ten dollars per 
month ; and every traveling merchant, hawker, or peddler who shall 
use a wagon, or one or more animals, for the purpose of vending any 
goods, wares or merchandise of any kind, or wines, fermented, or 
spirituous liquors, shall pay for such license twenty-five dollars per 
month; and every traveling merchant, agent, drummer, or other 
person selling or offering to sell any goods, wares, or merchandise of 
any kind, to be delivered at some future time, or carrying samples 
and selling or offering to sell goods, wares, or merchandise of any 
kind similar to said samples, to be delivered at some future time, 



Chap. 26.] Nevada. 185 

shall pay for such license twenty-five dollars per month ; provided, 
that nothing in this section shall be so construed as to apply to the 
sale of fruits or the agricultural products of this State, or any other 
State or Territory of the United States. 

The County Auditor shall issue to the Sheriff of the several coun- 
ties the licenses contemplated in this section, which licenses so is- 
sued shall authorize the holders of the same to vend goods, wares and 
merchandise as set forth in said license, within the county where 
such licenses are obtained ; and it is hereby made the duty of every 
Justice of the Peace, Constable, Sheriff, and all peace officers to de- 
mand the license of any such peddler, hawker, agent, drummer, or 
other person named herein, and if such person be found not to have 
a license, as directed by law, the person so offering any goods, wares, 
or merchandise for sale, shall be guilty of a misdemeanor, and on 
conviction shall be fined in any sum not less than fifty nor more 
than five hundred dollars. 



PART V. 



STATE OF OREGON. 



PREPARED EXPRESSLY FOR THIS WORK BY DOLPH, BRONAUGH, 
DOLPH & SIMON, PORTLAND, OREGON. 



CHAPTER I. 

COURTS AND THEIR JURISDICTION. 

The judicial power of the State is vested in a Supreme Court, Cir- 
cuit Courts and County Courts, which are Courts of record. 

Justices of the Peace are invested with limited judicial powers, 
and Municipal Courts may be created to administer the regulations 
of incorporated towns and cities. 

The Supreme Court consists of three Justices, who are elected by 
the electors throughout the State, and who hold their offices for six 
years. 

The Supreme Court has jurisdiction only to revise the final de- 
cisions of the Circuit Courts. 

There are five Circuit Judges, one for each Judicial District, who 
hold their offices for six years, and are elected by the electors in 
each District. 



188 oregox. [Part 5. 

The Circuit Courts are held at least twice in each year, in each 
county organized for judicial purposes, by the Circuit Judge of the 
District wherein such county is situate. All judicial power, author- 
ity and jurisdiction not vested exclusively in some other Court be- 
longs to the Circuit Courts, and they Jiave appellate jurisdiction and 
supervisory control over the County Courts, and all other inferior 
Courts, officers and tribunals. 

County Courts have jurisdiction, but not exclusive, of actions at 
law, and all proceedings therein and connected therewith, when the 
claim or subject of the controversy does not exceed the value of five 
hundred dollars. 

Justices' Courts have jurisdiction, but not exclusive, of the follow- 
ing actions : 

1. For the recovery of money or damages only, where the amount 
claimed does not exceed $250. 

2. For the recovery of specific personal property, when the value 
of the property claimed and the damages for the detention do not 
exceed $250. 

3. For the recovery of a penalty or forfeiture, not exceeding $250. 

4. To give judgment without action upon the confession of the 
defendant. 

The jurisdiction does not, however, extend to an action in which 
the title to real property shall come in question, or to an action for 
false imprisonment, libel, slander, malicious prosecution, criminal 
conversation, seduction, or upon a promise to marry. 



Chap. 2.] Oregon. 189 

CHAPTER II. 

TERMS OF COURT, WHEN AND WHERE HELD. 

The following are the times and places of holding Courts, both 
Federal and State, in the several counties and districts of the State. 

United States Circuit Court, District of Oregon. 

Regular terms held at Portland, on the second Monday in April, 
and first Monday in October. 

Judges Hon. Stephen J. Field, Associate Justice of the Supreme 
Court, and Hon. Lorenzo Sawyer, Circuit Judge ; Clerk, R. H. 
Lamson; Marshal, E. S. Kearney. 

United States District Court, District of Oregon. 

Regular terms held at Portland, on the first Monday of March, 
July and November. 

Judge, Hon. Matthew P. Deady ; Clerk, R. H. Lamson ; Marshal, 
E. S. Kearney ; U. S. District Attorney, Rufus Mallory ; Register 
in Bankruptcy, H. H. Northup. 

Supreme Court of Oregon. 

The Supreme Court consists of three Judges : Chief Justice, Hon. 
J. K. Kelly ; Associate Justices, Hon. R. P. Boise and Hon. P. P. 
Prim. 

Regular terms held at Salem, on the first Monday in January 
and July of each year. 

Circuit Judges : 1st District, Hon. H. K. Hanna ; 2d District, 
Hon. J. T. Watson ; 3d District, Hon. B. F. Harding ; 4th District, 
Hon. C. B. Bellinger ; 5th District, Hon. L. L. McArthur. 



190 Oregon. [Part 5. 

Circuit Courts of the State of Oregon. 



TIMES OF HOLDING. 



Baker [First Monday of October and third Monday of May. 

Benton Third Monday of November a nd second Monday of April. 

Clackamas Fourth Monday of April and fourth Monday of September. 

Clatsop Second Tuesday of August and fourth Tuesday of January. 

Columbia Second Monday of April. 

Coos [Fourth Monday of May and second Monday of September. 

Curry 'First Monday of June. 

Douglas Third Monday of October and second Monday of May. 

Grant (Third Monday of September and first Monday of June. 

Jackson Second Monday of February, June and November. 

Josephine Fourth Monday of April and fourth Monday of October. 

Lake Fourth Monday of June and November. 

Lane [Third Monday of April and first Monday of November. 

Linn Second Monday of March and fourth Monday of October. 

Marion Fourth Monday of Feb., second Monday of June, and third Monday of Oct. 

Multnomah Second Monday of February, June and October. 

Polk ]Second Monday of May and first Monday of December. 

Tillamook Second Monday of July. 

Umatilla Fourth Monday of October and last Monday of April. 

Union (Third Mondaj' of October and first Monday of May. 

Wasco Second Monday of November and third Monday of June. 

Washington Fourth Monday of May and first Monday of October. 

Yamhill Fourth Monday of March and first Monday of October. 



Terms of the County Courts. 

In the counties of Clackamas, Douglas, Josephine, Curry, Coos, 
Columbia, Clatsop, Tillamook and Umatilla, on the first Monday of 
January, April, July and September. 

In the counties of Grant, Baker, Lane, Wasco and Yamhill, on 
the first Monday of January, March, May, July, September and 
November. 

In the County of Lake, on the First Monday of every alternate 
month. 

In the County of Union, on the second Monday of May and the 
first Monday of January, March, July, September and November. 

In the counties of Jackson, Linn, Benton, Polk, Marion, Wash- 
ington and Multnomah, on the first Monday of each month. 



Chap. 3.] Oregon. 191 

CHAPTER III. 

COMMENCEMENT OF SUITS. 



Actions at law are commenced by filing a complaint with the 
Clerk of the Court. 

At any time after the action is commenced the plaintiff may cause 
a summons to be served on the defendant. 

The summons must contain the name of the Court in which the 
complaint is filed, the names of the parties to the action, and the 
title thereof ; it must be subscribed by the plaintiff or his attorney, 
and directed to the defendant, and require him to appear and answer 
the complaint, or the plaintiff will take judgment for a sum speci- 
fied therein. 

If the defendant be served within the county in which the action 
is commenced, he must appear and answer the complaint within ten 
days from the date of the service ; but if served in any other county 
in the State, he must appear and answer the complaint within twenty 
days from the date of service. 



192 Oregon. [Part 5. 

CHAPTER IV. 

PLACE OF TRIAL OF CIVIL ACTIONS. 

Actions for the recovery of real property, or an estate, or interest 
therein, or for injury thereto, and for the recovery of any personal 
property distrained for any cause, shall be commenced and tried in 
the county in which the subject of the action, or some part thereof, 
is situated. 

In all other cases the action shall be commenced and tried in the 
county in which the defendants or either of them reside, or may be 
found at the commencement of the action. If none of the parties 
reside in this State, the same may be tried in any county which the 
plaintiff may designate in his complaint. 



CHAPTER Y. 

LIMITATION OF ACTIONS. 

The periods prescribed for the commencement of actions are as 
follows : 

Within Twenty Years : 

Actions for the recovery of real property, or for the recovery of 
the possession thereof. 

Within Ten Years : 



Chap. 5.] Oregon. 193 

Actions upon a judgment or decree of any Court of the United 
States, or of any State or Territory within the United States. 
Actions upon sealed instruments. 

Within Six Years: 

An action upon a contract or liability, express or implied, except- 
ing those already mentioned. 

An action upon a liability created by statute, other than a penalty 
or forfeiture. 

An action for waste or trespass upon real property. 

An action for taking, detaining or injuring personal property, in- 
cluding an action for the specific recovery thereof. 

Within Three Years: 

An action against a Sheriff, Constable, or Coroner, upon a liability 
incurred by the doing of an act in his official capacity, or by the 
omission of an official duty ; but this does not apply to an action for 
an escape. 

An action upon a statue for a penalty or forfeiture. 

Within Two Years : 

An action for libel, slander, assault, battery, or false imprison- 
ment ; for criminal conversation, or for an injury to the person or 
rights of another not arising on contract. 

An action upon a statute for a forfeiture or penalty to the State. 

Within one Year : 

An action against a Sheriff or other officer for the escape of a 
prisoner arrested or imprisoned on civil process. 



An action for any cause not hereinbefore provided for shall be 
commenced within ten years after the cause of action accrued. 



194 Oregon. [Part 5 

CHAPTER VI. 

ATTACHMENTS. 

The plaintiff, at the time of issuing the summons, or at any time 
afterward, may have the property of the defendant attached, by 
filing with the Clerk of the Court an undertaking, with one or more 
sureties, to the amount for which the plaintiff demands judgment, 
and not less than $100 ; and the plaintiff, or some one in his behalf, 
making and filing an affidavit showing : 

1. That the defendant is indebted to the plaintiff, (specifying the 
amount of such indebtedness, over and above all legal set-offs or 
counter-claims) upon a contract, express or implied, for the direct 
payment of money, and that such contract was made or is payable 
in this State, and that the payment of the same has not been secured 
by any mortgage, lien, or pledge upon real or personal property ; or, 

2. That the defendant is indebted to the plaintiff, (specifying the 
amount of such indebtedness, as near as may be, over and above all 
legal set-offs or counter-claims) and that the defendant is a non-resi- 
dent of the State ; and, 

3. That the sum for which the attachment is asked is an actual 
bona fide existing debt, due and owing from the defendant to the 
plaintiff, and that the attachment is not sought, and the action pros- 
ecuted to hinder, delay or defraud any creditors of the defendant. 



Chap. 7.] Oregon. 195 

CHAPTER VII. 

ARRESTS IN CIVIL ACTIONS. 

The defendant may be arrested in the following cases : 

In an action for the recovery of money or damages on a cause of ac- 
tion arising out of contract, when the defendant is not a resident of the 
State, or is about to remove therefrom ; or when the action is for an 
injury to person or character, or for injuring or wrongfully taking, 
detaining, or converting property. In an action for a fine or pen- 
alty, or on a promise to marry, or for money received, or property 
embezzled or fraudulently misapplied or converted to his own use by 
a public officer, or an attorney, officer, or agent of a corporation, 
factor, agent or broker, or other person in a fiduciary capacity. In 
an action to recover the possession of any personal property unjustly 
detained, when the property or any portion thereof has been con- 
cealed, removed, or disposed of. 

"When the defendant has been guilty of a fraud in contracting 
the debt or incurring the obligation for which the action is brought. 

When the defendant has removed or disposed of his property, or 
is about to do so, with intent to defraud his creditors. 

No female can be arrested in any action, except for an injury to 
person, character, or property. 



196 Oregon. [Part 5. 

CHAPTER VIII. 

JUDGMENTS AND JUDGMENT LIENS. 



A judgment, when entered, becomes a lien upon the real estate 
owned by the defendant in the county at the time of the entry, and 
such as he may subsequently acquire. The lien continues for ten 
years. 



CHAPTER IX. 

EXECUTIONS, EXEMPTIONS, SALE, AND REDEMPTION. 

The party in whose favor a judgment is given which requires the 
payment of money, the delivery of real or personal property, or either 
of them, may, at any time after the entry thereof, have a writ of 
execution issued for its enforcement. 

There are three kinds of execution : one against the property of 
the judgment debtor, another against his person, and the third for 
the delivery of real or personal property. 

In the Circuit and County Courts executions are returnable in 
sixty days, and in Justices' Courts in thirty days. 

In the Circuit and County Courts there is no stay of execution, 
except pending an appeal ; in Justices' Courts execution may be 
stayed for thirty days upon filing bond. 

The following personal property is exempt from sale under an ex- 
ecution : 



Chap. 9.] Oregon. 197 

Books, pictures, and musical instruments, to the value of $75 ; 
wearing apparel to the value of $100, and if a householder, to the 
value of $50 for each member of the family ; tools, implements, ap- 
paratus, team, vehicle, harness, or library — when necessary in the oc- 
cupation or profession of a judgment debtor— to the amount of $400 ; 
if the judgment debtor be a householder, ten sheep with one year's 
fleece, two cows, five swine, household goods, furniture, and utensils, 
to the value of $300. No article of property is exempt from execu- 
tion issued upon a. judgment for the purchase price. 

Upon a sale of real property, when the estate is less than a lease- 
hold of two years' unexpired term, the sale is absolute. In all other 
cases such property is subject to redemption. 

The judgment debtor, or his successor in interest, may redeem 
such property within sixty days from the date of the order confirm- 
ing the sale, by paying the amount of the purchase money, with in- 
terest at the rate of two per cent, per month from the time of sale, 
together with the amount of taxes the purchaser may have paid 
thereon. 

A creditor having a lien by judgment, decree or mortgage, on any 
portion of the property subsequent in time to that on which the 
property was sold, may also redeem. 



198 Oregon. [Part 5. 

CHAPTER X. 

PROCEEDINGS SUPPLEMENTARY TO EXECUTION. 

After the issuing of an execution against property, and upon 
proof by the affidavit of the plaintiff, in the writ or otherwise, to the 
satisfaction of the Court or Judge thereof, that the judgment debtor 
has property liable to execution which he refuses to apply toward 
the satisfaction of the judgment, such Court or Judge may by an 
order require the judgment debtor to appear and answer under oath 
concerning the same. If it appear from such examination that the 
judgment debtor has property liable to execution, the Court or Judge 
shall make an order requiring the judgment debtor to apply the 
same in satisfaction of the judgment. Disobedience to any such 
order may be punished as for a contempt. 



CHAPTER XI. 

SECURITY FOR COSTS. 

Security for costs can only be required in Justices' Courts. If the 
plaintiff is a non-resident of the county, the Justice may require 
him to give an undertaking with one or more sureties for the costs 
and disbursements of the action before issuing the summons, and if 
at any time before the commencement of the trial the defendant ap- 
ply therefor, the Justice must require such plaintiff to give such un- 
dertaking. Upon application of defendant, and in the discretion of 



Chap. 12.] Oregon. 199 

the Justice, the plaintiff, if a resident of the county, may be re- 
quired to give an undertaking for costs. The undertaking may be 
in the following form : " I, A B, or We, A B and C D, undertake 
to pay E F, the defendant in this action, all costs and disbursements 
that may be adjudged to him in this action." 

The sureties must possess the qualifications of bail upon arrest, 
and if required by the defendant, must justify in a sum not less 
than $50. 



CHAPTEE XII. 

APPEALS. 

Any party to a judgment or decree, other than a decree or judg- 
ment for want of an answer, or by confession, may appeal therefrom. 

An appeal to the Supreme Court shall be taken by serving and 
filing a notice of appeal within six months from the entry of the 
judgment or decree appealed from, or to the Circuit Court within 
thirty days after such entry, and not otherwise. 

Appeals from the Circuit Courts are taken to the Supreme Court, 
and from County Courts and Justices' Courts to the Circuit Court of 
the county. 

Upon an appeal from the Circuit or County Court, the appellant 
must file an undertaking, with one or more sureties, to the effect 
that the appellant will pay all damages, costs and disbursements 
which may be awarded against him on the appeal ; and if the judg- 
ment or decree appealed from be for the recovery of money or per- 
sonal property, or the value thereof, to obtain a stay of proceedings 
the undertaking must further provide, that if the judgment or de- 
cree appealed from be affirmed, the appellant will satisfy it so far as 
affirmed. 



200 Oregon. [Part 5. 

Upon an appeal from Justices' Court, the undertaking is to the 
effect that the appellant will pay all costs and disbursements that 
may be awarded against him on the appeal, and that he will satisfy 
any judgment that may be given against him in the appellate Court 
on the appeal. 



CHAPTER XIII. 

ESTATES OF DECEASED PERSONS. 

Every executor or administrator must, immediately after his ap- 
pointment, publish a notice thereof in some newspaper published in 
the county, for four successive weeks. Such notice must require all 
persons having claims against the estate to present them to the ad- 
ministrator or executor, within six months from the date of such 
notice, with the proper vouchers. A claim not presented within six 
months is not barred, but it cannot be paid until the claims pre- 
sented within that period have been satisfied. A claim not due or 
contingent must, nevertheless, be presented as any other claim. 
Until administration has been completed, a claim against the estate 
may be presented, allowed and paid out of any assets not otherwise 
appropriated or liable. 

Every claim must be verified by the affidavit of the claimant, or 
some one on his behalf, who has personal knowledge of the facts, to 
the effect that the amount claimed is justly due, that no payments 
have been made thereon except as stated, and that there is no just 
counter-claim to the same. 

There is no specified time in which estates are required to be 
settled, 



Chap. 14.] OREGON. 201 

CHAPTER XIV. 

DESCENT OF REAL PROPERTY. 

When any person dies, seized of any real property, or any right 
thereto, or any interest therein, not having lawfully devised the same, 
such real property descends, subject to his debts, as follow : 

1. In equal shares to his children and to the issue of any deceased 
child by right of representation ; and if there be no child of the in- 
testate living at the time of his death, such real property descends 
to all his other lineal descendants ; and if all such descendants are 
in the same degree of kindred to the intestate, they take such real 
property equally ; or otherwise, they take according to the right of 
representation. „ 

2. If the intestate leaves no lineal descendants such property de- 
scends to his wife; and if he leaves no wife it descends to his 
father. 

3. If the intestate leaves no lineal descendants, wife nor father, 
such real property descends in equal shares to his brothers and sis- 
ters, and to the issue of any deceased brother or sister by right of 
representation ; but if the intestate leaves a mother also, she takes an 
equal share with such brothers and sisters. 

4. If the intestate leaves no lineal descendants, wife, father, 
brother nor sister living at his death, such real property descends to 
his mother, to the exclusion of the issue of his deceased brothers or 
sisters. 

5. If the intestate leaves no lineal descendants, wife, father, 
mother, brother nor sister, such real property descends to his next of 
kin in equal degree, excepting that when there are two or more col- 
lateral kindred in equal degree, but claiming through different an- 
cestors, those who claim through the nearest ancestor are preferred 
to those claiming through a more remote ancestor. 

6. If the intestate leaves one or more children, and the issue of 
one or more deceased children, and any of such surviving children 
shall die under age, without having been married, all such real prop- 



202 Oregon. [Part 5. 

erty that came to such deceased child by inheritance from such in- 
testate, descends in equal shares to the other children of the intes- 
tate, and to the issue of any other children of such intestate 
who shall have died, by right of representation ; but if all the other 
children of such intestate are also dead, and any of them shall have left 
issue, such real property so inherited by such deceased child descends 
to all the issue of such other children of the intestate in equal 
shares, if they are in the same degree of kindred to such deceased 
child ; otherwise they take by right of representation. 

7. If the intestate leaves no lineal descendants or kindred, such 
real property escheats to the State of Oregon. 



CHAPTEE XV. 

DESCENT OF PERSONAL PROPERTY. 

When any person dies possessed of any personal property, not 
having lawfully bequeathed the same, such personal property is ap- 
plied and distributed as follows : 

1. If the intestate leaves a widow, she is allowed all her articles 
of apparel and ornaments, according to the degree and estate of the 
intestate, and such property and provisions for the use and support 
of herself and minor children as shall be allowed and ordered. 

2. The personal property of the intestate remaining after such 
allowance is applied to the payment of the debts of the intestate, 
and the charges and expenses of administration. 

3. The residue, if any, of the personal property is distributed 
among the persons who would be entitled to the real property, ex- 
cept as otherwise provided. 



Chap. 16.] Oregon. 203 

4. If the intestate leaves a husband, such husband is entitled to 
the whole of the personal property. 

5. If the intestate leaves a widow and issue, such widow is enti- 
tlecUto receive one-half of such personal property ; but if there be a 
widow and no issue, she is entitled to the whole of such personal 
property. 

6. If there be no husband, widow or kindred, the whole escheats 
to the State. 



CHAPTER XVI. 

HOMESTEADS AND DOWER 

Homesteads. 

There is no homestead law in this State. 

Dower. 

The widow of every deceased person is entitled to dower, or the 
use during her natural life of one-third part of all the lands of which 
her husband was seized of an estate of inheritance at any time dur- 
ing the marriage, unless she is lawfully barred thereof. 



204 Oregon. [Part 5 

CHAPTER XVII. 

DEPOSITIONS. 

The deposition of a witness out of the State may be taken upon 
commission issued from the Court, or without commission before a 
Commissioner appointed by the Governor of this State to take depo- 
sitions in other States or countries. The commission may be issued 
by the Clerk of the Court, or the Justice in a cause pending in 
a Justices' Court, on the application of either party upon five days' 
previous notice to the other. It is issued to a person agreed upon 
by the parties, or if they do not agree, to a Judge, Justice of the 
Peace, Notary Public, or Clerk of a Court selected by the officer 
issuing it. Such interrogatories, direct and cross, as the parties may 
prepare may be annexed to the commission. 

The following form may be used : 

In the Court of the State of Oregon for County. 

A B, Plaintiff, 



C D, Defendant. 

Deposition of E F, a witness on behalf of the in the 

above entitled action, taken before me, a Commissioner named in the 

attached commission, and a (Notary Public) in and for 

county, State of , on the day of , 187 — , at 

my office, at the city of , in said county and State, who 

being first duly sworn in answer to the direct and cross interroga- 
tories attached to said commission in their order, testified as follows : 

1. To the first direct interrogatory he answers, etc. 

When completed the deposition should be read to the witness, 
and then subscribed by him. 

The following form of certificate should be added to the deposition : 

State of ) 

couxty of j 

I, , a (Notary Public) in and for said county and State, 

and Commissioner, before whom the foregoing deposition was taken, 



Chap. 18.] Oregon. 205 

do hereby certify that the deposition of said witness, E F, was taken 

before me, at my office in the city of— — , in said county and 

State, on the day of , 18 — , between the hours of 

o'clock a. m. , and o'clock — m. of said day ; that before proceed- 
ing to the examination, the witness Avas duly sworn to tell the truth, 
the whole truth, and nothing but the truth ; that at the same time 
and place I propounded to said witness the interrogatories attache^ 
to said commission in their order, and reduced his answers thereto 
to writing, and that when completed, the deposion was carefully 
read over by me to said witness, and then by him subscribed. 

In witness whereof, I have hereunto set my hand and official seal, 

this day of 187 — . 

[seal.] , 

Notary Public, etc. 
and Commissioner. 

Indorse upon the envelope the title of the Court and cause, and 

the words " deposition of ! ," and forward by mail to the 

officer issuing the commission. 



CHAPTER XVIII. 

JUDICIAL RECORD. 

The judicial record of a sister State is proved by the production 
of a copy thereof, certified by the Clerk or other person having 
the legal custody of the record, with the seal of the Court affixed 
thereto, if there be a seal, together with a certificate of the chief 
Judge, or presiding Magistrate, that the certificate is in due form, 
and made by the Clerk or other person having the legal custody of 
the original, 



206 oregox, [Part 5. 

CHAPTER XIX. 

ACKNOWLEDGMENTS. 

Deeds may be acknowledged within this State before any Judge 
of the Supreme Court, County Judge, Justice of the Peace, Notary 
Public, or Clerk of a Court. No acknowledgment of any conveyance 
having been executed shall be taken by any officer, unless he shall 
know or have satisfactory evidence that the person making such ac- 
knowledgment is the individual described in and who executed such 
conveyance. 

When a married women, residing in this State, shall join with her 
husband in a deed of conveyance of real estate situated within this 
State, the acknowledgment of the wife shall be taken separately and 
apart from her husband, and she shall acknowledge that she exe- 
cuted such deed freely and without fear or compulsion from any 
one. If any deed shall be executed in any other State, Territory, 
or District of the United States, such deed may be executed and 
acknowledged according to the laws of such State, Territory, or Dis- 
trict, or before any Commissioner appointed by the Governor of 
this State for such purpose ; and unless the acknowledgment be 
taken before such Commissioner, such deed shall have attached 
thereto a certificate of the Clerk or other proper certifying officer of 
a Court of Record of the county or district within which such ac- 
knowledgment was taken, under the seal of his office, that the per- 
son whose name is subscribed to the certificate of acknowledgment 
was, at the date thereof, such officer as he is therein represented to 
be, and that he believes the signature of such person subscribed 
thereto to be genuine, and that the deed is executed and acknowl- 
edged according to the laws of such State, Territory, or District. 



Chap. 20.] Oregon. 207 

CHAPTER XX. 

LIMITED PARTNERSHIPS. 



Limited partnerships for the transaction of mercantile, mechanical 
and manufacturing business may be formed in this State. The per- 
sons forming such partnership make and severally subscribe and ac- 
kowledge a certificate in duplicate, which contains the name as- 
sumed by the partnership, the names and respective places of resi- 
dence of all the general and special partners, the amount of capital 
which each special partner contributes, the general nature of the 
business to be transacted, and the time when the partnership _ is to 
commence and terminate ; one copy of such certificate is filed with 
the Clerk of the county in which the principal place of business of 
the partnership is to be. A copy of the same is required to be pub- 
lished for four weeks in some weekly newspaper published in the 
county. The business must be conducted under a name in which 
the names of the general partners only shall be inserted, without 
the addition of the word company, or any other general term. 

Special partners are not personally liable for any debts of the 
partnership. 

During the continuance of any such partnership no part of the 
capital stock can be withdrawn, nor any division of interests or 
profits made, so as to reduce such capital stock below the sum stated 
in the certificate. 



208 Oregon. [Part 5 

CHAPTEE XXI. 

MARRIED WOMEN. 



The Constitution of the State provides that the property and pe- 
cuniary rights of every married woman at the time of marriage, or 
afterward acquired by gift, devise, or inheritance, shall not be sub- 
ject to the debts or contracts of the husband, and laws shall be 
passed providing for the registration of personal property ; which 
has been done. The property, both real and personal, acquired by 
any married woman during coverture, is free from and not liable 
for the debts, liabilities or contracts of her husband. 



CHAPTEE XXII. 

CORPORATIONS. 

Corporations are only formed under general laws, and cannot be 
created by special laws. 

The stockholders of all corporations and joint-stock companies are 
liable for the indebtedness of such corporations to the amount of 
their stock subscribed and unpaid, and no more. 

No bank, banking company or moneyed institution can be created 
under the laws of this State; nor can any bank, company or institu- 
tion exist in the State with the privilege of making, issuing, or put- 
ting in circulation any bill, check, certificate, promissory note or 
other paper, or the paper of any bank, company or person, to circu- 
late as money. 



Chap. 13 and 14. J oregox. 209 

CHAPTER XXIII. 

CHATTEL MORTGAGES. 

Chattel mortgages are valid against third parties when the property 
is retained in the possession of the mortgagor, provided the mortgage 
or a copy thereof is filed in the office of the County Clerk. Such 
mortgage, however, ceases to be valid as against creditors and sub- 
sequent purchasers, or mortgagors in good faith, after the expiration 
of one year from the filing of the same, unless within thirty days 
preceding the expiration of the year an affidavit, setting forth the 
interest which the mortgagee has in the property by virtue of such 
mortgage, is made and annexed to the instrument or copy on file. 
The effect of such affidavit does not continue beyond one year, when 
a similar affidavit must be made. 



CHAPTER XXIV. 

INTEREST AND USURY. 

Ten per cent, per annum is the legal rate of interest ; but on con- 
tracts, interest at the rate of one per cent, per month may be charged 
by express agreement of the parties. 

Usury entails the forfeiture of the principal sum, without inter- 
est, to the school fund of the countv in which the suit is brought. 



210 OREGON. [Part 5. 

CHAPTER XXV. 

ASSIGNMENTS FOR BENEFIT OF CREDITORS. 

No general assignment of property by an insolvent, or in con- 
templation of insolvency, for the benefit of creditors shall be valid, 
unless it be made for the benefit of all his creditors in proportion to 
the amount of their respective claims. And such assignments shall 
have the effect to discharge any and all attachments on which judg- 
ments shall not have been taken at the date of such assignment ; 
and after the payment of the costs, and disbursements thereof, in- 
cluding attorneys' fees allowed by law, in case of judgment, out of 
the estate of the insolvent, such claim or claims shall be deemed as 
presented, arid share pro rata with other claims, as hereinafter 
provided. 

In the case of an assignment for the benefit of all the creditors of 
the assignor, the assent of the creditors shall be presumed. 

The debtor shall annex to such assignment an inventory, under 
oath, of his estate, real and personal, according to the best of his 
knowledge, and also a list of his creditors and the amount of their 
respective demands, but such inventory shall not be conclusive as to 
the amount of the debtor's estate, and such assignment shall vest in 
the assignee the title to any other property belonging to the debtor 
at the time of making the assignment. Every assignment shall be 
in writing and duly acknowledged in the same manner as convey- 
ances of real estate, and recorded in the county where the person 
making the same resides, or where the business in respect of which 
the same is made has been carried on. 

The assignee shall also forthwith file with the Clerk of the Circuit 
Court of the county where such assignment shall be recorded, a true 
and full inventory and valuation of said estate, under oath, so far 
as the same has come to his knowledge, and shall then and there 
enter into a bond to the State of Oregon, for the use of the creditors, 
in double the amount of the inventory and valuation, with two or 
more sufficient sureties, to be approved by said Clerk, for the faith- 



Chap. 25.] Oregon. 2il 

ful performance of said trust; and the assignee may thereupon pro- 
ceed to perform any duty necessary to carry into effect the intention 
of said assignment. 

The assignee shall forthwith give notice of such assignment by 
publication in some newspaper in the county, if any, and if none, 
then in the nearest county thereto ; which publication shall be con- 
tinued at least six weeks, and shall forthwith serve a notice by mail 
to each creditor of whom he shall be informed, directed to their 
usual place of residence, and notifying the creditors to present their 
claims, under oath, to him within three months thereafter. 

At the expiration of three months from the time of first publish- 
ing notice, the assignee shall report and file with the Clerk of the 
Court a true and full list, under oath, of all such creditors of the 
assignor as shall have claimed to be such, with a statement of their 
claims, and also an affidavit of publication of notice, and a list of the 
creditors, with their places of residence -to whom notice has been 
sent by mail, and the date of mailing, duly verified. 

Any person interested may appear within three months after filing- 
such report, and file with said Clerk any exceptions to the claim or 
demand of any creditor, and the Clerk shall forthwith cause notice 
thereof to be given to the creditor, which shall be served as in case 
of a summons, returnable at the next term ; and the said Court shall, 
at such term, proceed to hear the proofs and allegations of the par- 
ties in the premises, and shall render such judgment thereon as shall 
be just, and may allow a trial by jury thereon. 

If no exception be made to the claim of any creditor, or if the 
same has been adjudicated, the Court shall order the assignee to 
make, from time to time, fair and equal dividends among the cred- 
itors of the assets in his hands in proportion to their claims, and as 
soon as may be, to render a final account of said writ to said Court, 
who may allow such commissions to said assignees in the final settle- 
ment as may be considered just and right. 

The assignee shall at all times be subject to the order of the Court 
or Judge ; and the said Court or Judge may, by citation and attach- 
ment, compel the assignee, from time to time, to file reports of his 
proceedings, and of the situation and condition of the trust, and to 
proceed in the faithful execution of the duties required by this Act. 

No assignment shall be declared fraudulent or void for want of 



212 Oregon. [Part 5. 

any bill or inventory as provided in the Act. The Court or Judge 
may, upon application of the assignee, or any creditor, compel the 
appearance in person of the debtor before such Court or Judge 
forthwith, or at the next term, to answer under oath such matters 
as may then and there be inquired of him ; and such debtor may 
then and there be fully examined under oath as to the amount and 
situation of his estate, and the names of the creditors and amounts 
due to each, with their places of residence, and may compel the de- 
livery to the assignee of any property or estate embraced in the 
assignment. 

The assignee shall, from time to time, file with the Clerk of the 
Court, an inventory and valuation of any additional property which 
may come into his hands under said assignment after the filing of 
the first inventory, and the Clerk may thereupon require him to give 
additional security. 

Any creditor may claim debts to become due, as well as debts due, 
but on debts not due a reasonable abatement shall be made when 
the same are not drawing interest ; and all creditors who shall not 
exhibit their claims within the term of three months from the publi- 
cation of notice as aforesaid, shall not participate in the dividends 
until after payment in full of all claims presented within said time 
and allowed by the Court. 

Any assignee as aforesaid, shall have as full power and authority 
to dispose of all estate, real and personal, assigned, as the debtor 
had at the time of assignment, and to sue for and recover in the 
name of such assignee everything belonging or appertaining to said 
estate, and generally do whatsoever the debtor might have done in 
the premises ; but no sale of real estate belonging to said trust shall 
be made without notice, published as in case of sales of real estate 
on execution, unless the Court shall order and direct otherwise. 

In case any assignee shall die before the closing up of his trust, or 
in case any assignee shall fail or neglect, for the period of twenty 
days after the making of any assignment, to file an inventory and 
valuation, and give bonds as required b}^ this Act, the Circuit Court, 
or Judge thereof, of the county where such an assignment may be 
recorded, on the application of any person interested, shall appoint 
some person to execute the trust embraced in such assignment, and 
such person on giving the bond, with sureties, as required above of 



Chap. 25.] Oregon. 213 

the assignee, shall possess all the powers conferred on such assignee, 
and shall be subject to all the duties hereby imposed as fully as 
though named in the assignment ; and in case any security shall be 
discovered insufficient, or on complaint before the Court or Judge, 
it should be made to appear that any assignee is guilty of wasting 
or misapplying the trust estate, said Court or Judge may direct and 
require additional security, and may remove such assignee, and may 
appoint others instead ; and such person so appointed, on giving 
bond, shall have full power to execute such duties, and to demand and 
sue for all estate in the hands of the person removed, and to demand 
and recover the amount and value of all moneys and property or 
estate so wasted and misapplied, which he may neglect or refuse to 
make satisfaction for, from such person and his sureties. 



PART VI. 



IDAHO TERRITORY. 



PREPARED EXPRESSLY FOR THIS WORK BY JONAS W. BROWN, 

IDAHO CITY. 



CHAPTER I. 

COURTS, THEIR JURISDICTION AND TERMS. 

The judicial power of the Territory is vested in a Supreme Court, 
three District Courts, Probate Courts for each County, and Justices 
of the Peace. 

The Supreme Court 

Has appellate jurisdiction in all civil cases where the amount in dis- 
pute exceeds in value one hundred dollars, and in all criminal cases 
tried in District Courts. Meets at Boise City annually, on the first 
Monday of January. 

District Courts 

Have original jurisdiction in all civil cases where the amount in dis- 
pute exceeds one hundred dollars, and in all criminal cases prose- 



216 idaho. [Part 6. 

cutecl by indictment. Their appellate jurisdiction extends to hear- 
ing all cases on appeal from Probate Courts and Justices' Courts. 
They have exclusive jurisdiction in all equity cases, and in all cases 
involving the title to real estate. 

The terms of the District Courts are fixed annually for the sev- 
eral counties by the Supreme Court. 

The Probate Courts 

Have judrisdiction in all probate matters, same as in California. 
They have also concurrent jurisdiction (by special Act of Congress) 
with the District Courts in all civil actions, when the amount in con- 
troversy shall not exceed five hundred dollars, exclusive of interest. 
The terms of the Probate Courts commence on the fourth Monday 
in each month. 

Justices' Courts 

Have jurisdiction in all civil actions where the sum or damages 
claimed do not exceed one hundred dollars, excepting matters where 
the boundaries of land are in dispute. These Courts are always 
open for business. 



Chap. 2.] idaho. 217 

CHAPTER II. 

COMMENCEMENT OF ACTIONS. 

Civil actions in the District Courts and the Probate Courts shall 
be commenced by the filing of a complaint with the Clerk of the 
Court in which the action is brought ; provided, that after the filing 
of the complaint, a defendant in the action may appear, answer or 
demur, whether summons has been issued or not, and such appear- 
ance, answer, or demurrer be deemed a waiver of summons. 

The Clerk shall indorse on the complaint the day, month and year 
the same is filed ; and at any time within one year after the filing of 
the same, the plaintiff may have a summons issued. The Act defin- 
ing jurisdiction of Probate Courts provides that the summons may 
be issued at any time within six months from the filing of the com- 
plaint. 

In the District Court the defendant must answer in ten days, if 
served within the county in which £he action is brought ; in twenty 
days if served without the county, but within the judicial district 
in which the action is brought ; in all other cases, thirty days. In 
the Probate Court, answer must be filed in ten days. 



218 idaho. [Part 6. 

CHAPTER III. 

PLACE OF TRIAL OF CIVIL ACTIONS. 

Actions for the following causes shall be tried in the county in 
Avhich the subject of the action, or some pai't thereof, is situated, 
subject to the power of the Court to change the place of trial : 

1. For the recovery of real property, or of an estate or interest 
therein, or for the determination, in any form, of such right or in- 
terest, or for injuries to real property. 

2. For the partition of real property. 

3. For the foreclosure of a mortgage of real property ; provided, 
when such real property is situate partly in one county and partly 
in another, the plaintiff may select either of said counties, and the 
county so selected shall be the proper county for the trial of such 
action. 

Actions for the following causes shall be tried in the county where 
the cause, or some part thereof, arose ; subject to the like power of 
Court to change the place of trial : 

1. For the recovery of a penalty or forfeiture imposed by a stat- 
ute, except that when it is imposed for an offense committed on a 
lake, river, or other stream of water situated in two or more counties, 
the action may be brought in any county bordering on such lake, 
river, or other stream, and opposite the place where the offense was 
committed. 

2. Against a public officer, or person especially appointed to exe- 
cute his duties, for an act done by him in virtue of his office, or 
against a person who, by his command, or in his aid, does anything 
touching the duties of such officer. 

In all other cases, the action shall be tried in the county in which 
the defendants, or any of them, may reside at the commencement of 
the action ; or if none of the defendants reside in this Territory, or, 
if residing in this Territory, the county in which they so reside be un- 
known to the plaintiff, the same may be tried in any county which 
the plaintiff may designate in his complaint ; and if any defendant 



Chap. 4.] idaho. 219 

or defendants may be about to depart from the Territory, such action 
may be tried in any county where either of the parties reside or may 
be found, or service be had ; subject, however, to the power of the 
Court to change the place of trial, as provided in the act. 



CHAPTER IV. 

LIMITATIONS OF CIVIL ACTIONS. 

Six Tears : 

Ileal estate, including quartz mines or lodes, judgments or decrees 
of any Court of the United States, or of any State or Territory of 
the United States. 

Five Years : 

Any contract, obligation, or liability founded upon an instrument 
of writing. 

Four Years : 

Contract or liability not founded upon an instrument of writing, 
including accounts. 

Three Years : 

Trespass upon real property, taking, detaining or injuring goods 
or chattels, or for the specific recovery of personal property. Relief 
on ground of fraud. 

Two Years : 

Against a Sheriff, Coroner or Constable upon the liability incurred 
by the doing of an act officially, or the omission of an official duty ; 
for non-payment of money collected on execution ; for libel, slander, 
assault, battery and false imprisonment. Upon statute forfeiture 
and against Sheriff or other officer for escape of prisoner arrested or 
imprisoned on civil process. 

• One Year : 

Placer mining claims. 



220 idaho. [Part 6. 

General Provisions. 

An action upon any contract, obligation or liability for the pay- 
ment of money, founded upon an instrument of writing executed 
out of this Territory, or any other Territory from which this Terri- 
tory is in part formed, can only be commenced as follows : 

1. Within one year, when more than two and less than five years 
have elapsed since the cause of action accrued. 

An action upon any judgment, contract, obligation or liability for 
the payment of money or damages, obtained, executed, or made out 
of this Territory, or any other Territory from which this Territory 
is in part formed, shall only be commenced "within three years after 
the party making such liabilities shall be a resident of this 
Territory. 

No acknowledgment of promise shall be sufficient evidence of a 
new or continuing contract, whereby to take the case out of the 
operation of the statute, unless the same be contained in some writ- 
ing signed by the party to be charged thereby. 



CHAPTER V. 

ATTACHMENTS. 



The plaintiff, at the time of issuing the summons, or at any time 
afterward, may have the property of the defendant attached as se- 
curity for the satisfaction of any judgment that may be recovered, 
unless the defendant give security to pay such judgment, in the fol- 
lowing cases : 

1. In an action upon a contract, express or implied, for the direct 
payment of money, which contract is not secured by a mortgage, 



Chap. 5.] idaho. 221 

lien, or pledge upon real or personal property • or, if so secured, that 
such security has, without any act of the plaintiff, or the person to 
whom the security was given, become valueless. 

2. In an action upon a contract, express or implied, against a de- 
fendant not residing in this Territory. 

The Clerk of the Court shall issue the writ of attachment upon 
receiving an affidavit by or on behalf of the plaintiff, which shall be 
filed setting forth — 

1. That the defendant is indebted to the plaintiff, specifying the 
amount of such indebtedness over and above all legal set-offs and 
counter-claims, upon a contract, express or implied, for the direct 
payment of money ; and that the payment of the same has not been 
secured by any mortgage, lien, or pledge upon real or personal prop- 
erty ; or, if so secured, that such security has without any act of the 
plaintiff, or the person to whom the security was given, become 
valueless ; or, 

2. That the defendant is indebted to the plaintiff, specifying the 
amount of the indebtedness as near as may be, over and above all 
legal set-offs and counter-claims, and that the defendant is a non- 
resident of the Territory ; and, 

3. That the attachment is not sought, and the action is not prose- 
cuted to hinder, delay, or defraud any creditor or creditors of the 
defendant. 

Before issuing the writ, the Clerk must require a written under- 
taking on the part of the plaintiff, in a sum not less than two hun- 
dred dollars, and not exceeding the amount claimed by the plaintiff, 
with sufficient sureties, to the effect that if the defendant recover 
judgment, the plaintiff will pay all costs that he may sustain by 
reason of the attachment, not exceeding the sum specified in the un- 
dertaking, if the attachment be wrongfully issued. 



222 ipaho [Part 6. 

CHAPTER VI. 

ARREST IN CIVIL ACTION. 

The defendant may be arrested, as hereinafter provided, in the 
following cases : 

1. In an action for the recovery of money or damages on a cause 
of action arising upon contract, express or implied, when the defend- 
ant is about to depart from the Territory, with intent to defraud his 
creditors ; or when the action is for willful injury to person, to 
character, or to property, knowing the property to belong to another. 

2. In an action for a fine or penalty, or on a promise to marry, 
or for money or property embezzled, or fraudulently applied, or con- 
verted to his own use by a public officer, or an officer of a corpora- 
tion, or an attorney, factor, broker, agent, or clerk, in the course of 
his employment as such, or by any other person in a fiduciary ca- 
pacity, or for misconduct or neglect in office, or in a professional 
employment, or for a willful violation of duty. 

3. In an action to recover the possession of personal property un- 
justly detained, when the property, or any part thereof, has been 
concealed, removed, or disposed of, to prevent its being found or 
taken by the Sheriff. 

4. When the defendant has been guilty of fraud in contracting 
the debt or incurring the obligation for which the action is brought, 
or in concealing or disposing of the property, for the taking, deten- 
tion, or conversion of which the action is brought. 

5. When the defendant has removed or disposed of his property, 
or is about to do so, with intent to defraud his creditors. 

To obtain an order of arrest, it must appear to the Judge, by the 
affidavit of the plaintiff or some other person, that a sufficient cause 
of action exists, and that the case is one of those above mentioned. 
The affidavit must be positive, or upon information and- belief. Be- 
fore making an order, the Judge must require a written undertak- 
ing on the part of plaintiff, with sureties in an amount to be fixed 
by the Judge, which must be at least five hundred dollars. 



Chap. 7.] Idaho. 223 

CHAPTER VII. 

JUDGMENTS AND JUDGMENT LIENS. 

In an action on a contract or obligation, in writing, for the direct 
payment of money, made payable in a specified kind of money or 
currency, judgment for the plaintiff may follow the contract or obli- 
gation, and be made payable in the kind of money or currency speci- 
fied therein. 

From the time the judgment is docketed it becomes a lien upon 
all the real property of the judgment debtor, not exempt from exe- 
cution in the county, owned by him at the time, or which he may 
afterward acquire, until the' lien expires. The lien continues for 
two years. 

A transcript of the original docket, certified by the Clerk, and 
filed with the Recorder of any other county, becomes a lien on the 
property of the judgment debtor in such county, and continues for 
two years. 

A transcript of a judgment of a Probate Court, filed and dock- 
eted in the office of the District Clerk, becomes a lien upon the real 
estate of the judgment debtor for two years from date of filing and 
docketing. 

A transcript of a judgment of a Justice of the Peace becomes 
a lien upon real estate by being filed and recorded in the County 
Recorder's office. By filing and docketing same in District Clerk's 
office, the Clerk may issue execution to any other county in the Ter- 
ritory. 



224 Idaho. [Part 6. 



CHAPTER VIII. 

EXECUTIONS, EXEMPTIONS, SALE AND REDEMP- 
TION. 

A writ of execution to enforce the judgment may be issued at 
any time within five years after the entry thereof. In all cases 
other than for the recovery of money, the judgment may be en- 
forced or carried into execution after the lapse of live years from 
the date of its entry, by leave of the Court, upon motion or by judg- 
ment for that purpose, .founded upon supplemental pleadings. 

Exemptions from Execution. 

1. Chairs, tables, desks and books, to the value of one hundred 
dollars, belonging to the judgment debtor. 

2. Necessary household, table and kitchen furniture belonging to 
the judgment debtor, including stove, stovepipe, and stove furniture 
of whatever kind, wearing apparel, beds, bedding and bedsteads, 
and provisions actually provided for individual or family use suf- 
ficient for three months. 

3. The farming utensils or implements of husbandry of the judg- 
ment debtor; also, two oxen, or two horses, or two mules, and their 
harness; two cows, one cart or wagon, and food for such oxen, 
horses, cows or mules for three months; also, all seed grain or vege- 
tables actually provided, reserved, or on hand for the purpose of 
planting or sowing at any time within the ensuing six months, not 
exceeding in value the sum of two hundred dollars; the tools and 
implements of a mechanic necessary to carry on his trade; the in- 
struments and chests of a surgeon, physician, surveyor, and dentist 
necessary to the exercise of their profession, with the professional 
library, and the law libraries of an attorney and counselor; also, the 
wardrobe and books of an actor. 

4. The tents and furniture, including a table, camp-stools, bed 
and bedding of a miner ; also, his rocker, shovels, spades, wheelbar- 



Chap. 6.] IDAHO. 225 

• 
rows, pumps, and other instruments used in mining, with provisions 

necessary for his support for three months. 

5. Two oxen, two horses, or two mules and their harness, and 
one cart or wagon, by the use of which a cartman, teamster, or 
other laborer habitually earns his living, and the food for such oxen, 
horses, or mules, for three months ; and a horse used by a physician 
in making his professional visits. 

6. All fire-engines, with carts, buckets, hose, and apparatus thereto 
appertaining, of any fire company or department organized under 
any law of this Territory. 

7. All arms and accoutrements required by law to be kept by any 
persons-. 

8. All court-houses, jails, public offices and buildings, lots, ground 
and personal property, the fixtures, furniture, books, papers, and 
appurtenances belonging to any county in this Territory ; and all 
cemeteries, public squares, parks, and public buildings, town halls, 
markets, buildings appertaining to the fire departments, and the lots 
and grounds thereto belonging and appertaining, owned or held by 
any town or incorporated city, or dedicated by such town or city to 
health, ornament, or public use. 

No article above mentioned shall be exempt from execution issued 
upon a judgment recovered for its price, or upon a mortgage thereon. 

Sale of Property Under Execution. 

In case of perishable property, by posting written .notices of the 
time and place of sale in three public places of "the precinct, for a 
reasonable time, considering the condition of property. In case of 
other personal property, by posting similar notices in three public 
places of the precinct, township or city where the sale is to take 
place, not less than five, nor more than ten days successively. In case 
of real property, by posting similar notices, particularly describing 
the property, for twenty days successively, in three public places of 
the precinct, township, or city where the property is situated, and 
also where the property is to be sold, and publishing a copy thereof 
once a week for the same period in some newspaper published in 
the county, if there be one. All sales of property under execution 
shall be made at auction to the highest bidder, and shall be made 
between the hours of nine in the morning and five in the afternoon. 



226 Idaho. [Part 6. 

Redemption. 

Real estate sold on execution under a judgment, or upon fore- 
closure of mortgage or mechanics' liens, may be redeemed within six 
months from the date of the sale, either by the judgment debtor or 
his successor in interest in the whole or any part of the property, or 
by a creditor having a lien by judgment or mortgage on the property 
sold, by paying to the purchaser the amount of his purchase with 
eighteen per cent, thereon in addition. The purchaser is entitled to 
the rents, issues and profits. 



CHAPTER IX. 

PROCEEDINGS SUPPLEMENTARY TO EXECUTION. 

After return of execution unsatisfied, the judgment debtor may 
be required to answer concerning his property. 

A judgment debtor unjustly refusing to apply property which he 
has to the satisfaction of a judgment against him, may be required 
to appear and answer concerning the same. 

After the issuing or return of execution, or upon proof by affi- 
davit or otherwise, to the satisfaction of the Judge, that any per- 
son or corporation has property of judgment debtor, or is indebted 
to him in an amount exceeding fifty dollars, such person or corpora- 
tion may be required to appear and answer concerning the same. 



Chap. 10 and 11.] idaho. 227 

CHAPTER X. 

SECURITY FOR COSTS. 



When the plaintiff in an action resides out of the Territory, or is 
a foreign corporation, security for costs and charges that may be 
awarded against 'such plaintiff may be required by the defendant. 
When required, all proceedings shall be stayed until an undertaking, 
as required, be filed to pay all costs, not exceeding the sum of three 
hundred dollars, with two sureties. If such security be not given 
within thirty days from the service of notice that security is re- 
quired, the Court may order the action dismissed. 



CHAPTER XL 

APPEALS IN GENERAL. 

An appeal may be taken : 1. From a final judgment in an ac- 
tion or special proceeding, commenced in the Court in which the 
judgment is rendered, within one year after the entry of judgment. 
But an exception to the decision or verdict, on the ground that it is 
not supported by the evidence, cannot be reviewed on appeal from 
the judgment, unless the appeal is taken within sixty days 
after the rendition of the judgment. 

2. From a judgment rendered by a Probate or Justice's Court, 
within twenty-one days from the entry of judgment. 

3. From an order granting or refusing a new trial ; from an order 



228 Idaho. [Part 6. 

granting or dissolving an injunction ; from an order refusing to grant 
or dissolve an injunction ; from an order dissolving or refusing to 
dissolve an attachment ; from an order granting or refusing to grant 
a change of the place of trial ; from any special order made after 
final judgment, and from an interlocutory judgment in actions for 
partition of real property, within thirty days after the order or in- 
terlocutory judgment is made and entered in the minutes of the 
Court, or filed with the Clerk. 

In the District Court, an undertaking must be filed on the part of 
the appellant by at least two sureties, to the effect that the appellant 
will pay all the damages and costs, not exceeding three hundred dol- 
lars ; or that sum must be deposited with the Clerk. 

If a stay of proceedings is desired, an undertaking in double the 
amount of the judgment and costs must be filed. 

In the Probate and Justices' Courts, appeals are allowed in all 
cases where the demand, exclusive of interest, or the value of the 
property in controversy amounts to twenty-five dollars. 

Appeals in Probate and Justices' Courts must be taken in twenty 
days from the rendition of the judgment. 



Chap. 12] idaho. 229 

CHAPTER XII. 

HOMESTEADS. 

The homestead consisting of a quantity of land, together with the 
dwelling house thereon and its appurtenances, not exceeding in value 
the sum of five thousand dollars, to be selected by the husband and 
wife, or either of them, or other head of a family, shall not be sub- 
ject to forced sale on execution, or any final process from any 
Court. 

The person or persons claiming a homestead shall do so by written 
declaration, setting forth that they, or either of them, are married, 
or if not married, that he or she is the head of a family ; that they 
or either of them, as the case may be, are, at the time of making 
such declaration, residing with their family, or with the person 
under their care and maintenance, on the premises, particularly de- 
scribing said premises, and it is their intention to use and claim the 
same as a homestead, which declaration shall be signed by the party 
making the same, and acknowledged and recorded in the office of the 
County Recorder. Such exemption shall not extend to any me- 
chanics, laborers or vendor's lien, lawfully obtained, nor to a mort- 
gage or alienation to secure the purchase money or pay the purchase 
money, if the signature of the wife be obtained to the same, and ac- 
knowledged by her separate and apart from her husband. 



230 Idaho. [Part 6 

CHAPTER XIII. 

ESTATES OF DECEASED PERSONS. 

Every executor or administrator shall, immediately after his ap- 
pointment, cause to be published in some newspaper published in 
the county — if there be one, if not, then in such newspaper as may 
be designated by the Court — a notice to the creditors of the deceased, 
requiring all persons having claims against the deceased to exhibit 
them, with the necessary vouchers, within ten months after the first 
publication of the notice, to such executor or administrator, at the 
place of his residence or transaction of business, to be specified in 
the notice. 

If a claim be not presented within ten months— unless the value 
of the estate does not exceed fifteen hundred dollars, in which case 
notice to creditors shall be given to present their claims within four 
months— after the first publication of the notice, it shall be barred 
forever ; provided, if it be not then due, or if it be contingent, it 
may be presented within ten months after it shall become due or ab- 
solute ; and, provided further, that when it shall be made to appear 
by the affidavit of the claimant, to the satisfaction of the executor or 
administrator and the Probate Judge, that the claimant had no no- 
tice, as provided in this act, by reason of absence from this Territory, 
it may be presented at any time before a decree of distribution is 
entered. 

Every claim presented to the administrator shall be supported by 
the affidavit of the claimant that the amount is justly due, that no 
payments have been made thereon, and that there are no off-sets to 
the same to the knowledge of the claimant or affiant ; provided, that 
when the affidavit is made by any other person than the claimant, he 
shall set forth in the affidavit the reason it is not made by the claim- 
ant. The oath may be taken before any officer authorized to admin- 
ister oaths. If the claimant is a non-resident, the affidavit must be 
made before a Judge or Clerk of a Court having a seal, or a Com- 
missioner for Idaho Territory. The executor or administrator shall 



Chap. 13.] idaho. 231 

also requre satisfactory vouchers or proofs to be produced in support 
of the claim. 

The amount of interest shall be computed and included in the 
statement of the claim, and the rate of interest determined ; pro- 
vided, that no claim which shall have been due and payable thirty 
days prior to the death of the deceased shall bear greater interest 
than ten per cent, per annum from and after the time of issuing let- 
ters. 

When a claim, accompanied by the affidavit required, has been 
presented to the executor or administrator he shall indorse thereon 
his allowance or rejection, with the day and date thereof. If he 
allow the claim, it shall be presented to the Judge for his ap- 
proval, who shall in the same manner indorse upon it his allowance 
or rejection, 

If the executor or administrator, or the Judge, refuse or neglect 
to indorse such allowance or rejection for ten days after the claim 
shall have been presented to him, such refusal or neglect shall be 
deemed a rejection ; if allowed and approved, it must be filed in the 
Probate Court within thirty days. 

If the claim be founded on a bond, bill, note, or other instru- 
ment, the original instrument shall be presented, and the allowance 
and approval, or rejection, shall be indorsed thereon or attached 
thereto. 

If the claim, or any part thereof, be secured by a mortgage or 
other lien, such mortgage or evidence of lien shall be attached to the 
claim and filed therewith, unless the same be recorded in the office 
of the Recorder of the county in which the land lies ; in which case 
it shall be sufficient to describe the mortgage or lien, and refer to 
the date, volume and page of its record. 

In all cases the claimant may withdraw his claim from file- on 
leaving a certified copy, with a receipt indorsed thereon, by himself 
or his agent. If the original instrument be lost or destroyed, then, 
in lieu thereof, the claimant shall be required to file his affidavit 
particularly describing such instrument, and stating the loss or de- 
struction thereof. 

When a claim is rejected, either by the executor or administrator, 
or Probate Judge, the holder shall bring suit in the proper Court 
against the executor or administrator, within three months after the 



232 idaho. [Part 6. 

date of its rejection, if it be then due, or within three months after 
it becomes due, otherwise the claim shall be forever barred. 

No claim shall be allowed which is barred by the statute of lim- 
itations. 

The executor, administrator or Probate Judge, may allow a claim 
in part, and if the claimant fail to recover a greater sum he is al- 
lowed no costs. 

The debts of the estate are paid in the following order : 

1. Funeral expenses. 

2. The expenses of the last sickness. 

3. Debts having preference by the laws of the United States. 

4. Judgments rendered against the deceased in his lifetime, and 
mortgages in the order of their date. 

5. All other demands against the estate. 

The mortgages in preference extend only to the proceeds of the prop- 
erty mortgaged ; any deficiency must be classified and paid under the 
fifth head. 

Executors and administrators should make a settlement of the es- 
tate at the expiration of one year; except where the value of the 
estate does not exceed fifteen hundred dollars, the Court may order 
the estate settled in six months. 



Chap. 14.1 idaho. 233 



CHAPTER XIV. 



DEPOSITIONS. 



The deposition of a witness in* this Territory, who is a party to 
the action or proceeding, or who resides out of the county, or is 
about to leave the county where the action is to be tried, or is too 
infirm to attend the trial ; or when the testimony is required upon a 
motion, or in any other case where the oral examination of the wit- 
ness is not required, may be taken by either party, before any Judge 
or Clerk, or any Justice of the Peace or Notary Public in this Terri- 
tory, on serving upon the adverse party previous notice of the time 
and place of the examination, together with a copy of an affidavit, 
showing that the case is one of the above mentioned. Such notice 
shall be at least five days, and in addition one day for every twenty- 
five miles of the distance of the place of examination from the 
residence of the person to whom the notice is given, unless a shorter 
time is prescribed by the Judge. 

The deposition of a witness out of this Territory may be taken 
upon commission issued from the Court, under the seal of the Court, 
upon an order of the Judge or Court, or Probate Judge, on the ap- 
plication of either party, upon five days' notice to the other. If 
issued to any place within the United States, it may be directed to 
a person agreed upon by the parties, or if they do not agree, to any 
Judge, or Justice of the Peace, or Commissioner selected by the 
officer issuing it. 

If issued to any country out of the United States, it may be di- 
rected to a Minister, Abassador, Consul, Yice Consul, or Consular 
Agent of the United States in such country, or to any person 
agreed on by the parties. 

The commission shall authorize the Commissioner to administer an 
oath to witness, and to take his deposition in answer to the inter- 
rogatories ; or when the examination is to be made without interrog- 
atories, in respect to the matter in dispute ; and to certify the depo- 



234 idaho. [Part 6 

sition to the Court, in a sealed envelope, directed to the Clerk or 
other person designated or agreed upon, and forward to him by mail 
or other usual channel of conveyance. 



CHAPTER XV. 

JUDICIAL RECORDS. 

A judicial record of this Territory or of the United States may 
be proved by the production of the original or copy thereof, certified 
by the Clerk, or other person having the legal custody thereof, 
under the seal of the Court, to be a true copy of such record. 

The records or judicial proceedings of the Courts of any State of 
the United States may be proved or admitted in the Courts of this 
Territory, by the attestation of the Clerk and the seal of the Court 
annexed, if there be a seal, together with the certificate of the 
Judge, chief Justice or presiding ^Magistrate, as the case may be, 
that the attestation is in due form. 

A seal of a Court or public officer, when required may be im- 
pressed with wax, wafer, or any other substance, and then attached 
to the instrument or document j or it may be impressed on the paper 
alone, 



Chap. 16.] idaho. 235 

CHAPTER XVI. 

ACKNOWLEDGMENTS. 



Acknowledgments are required in all conveyances affecting real 
estate. The same certificate required as in California. 
May be taken by : 

1. If acknowledged or proved within this Territory, by some 
Judge or Clerk of a Court having a seal, or some Notary Public, 
Recorder or Justice of the Peace of the proper county. 

2. If acknowledged or proved without this Territory, and within 
the United States, by some Judge or Clerk of any Court of the 
United States, or of any State or Territory having a seal, or by any 
Commissioner appointed by the Governor of this Territory. 

3. If acknowledged or proved without the United States, by some 
Judge or Clerk of any Court (having a seal) of any State, Kingdom 
or Empire, or by a Notary Public therein, or by any Minister, Com- 
misssoner, or Consul of the United States appointed to reside therein. 

The Act concerning conveyances of real estate, or any interest 
therein, and mortgages, is the same as in California. 



236 idaho. [Part 6. 

CHAPTER XVII. 

LIMITED PARTNERSHIPS. 

Limited partnerships for the transaction of mercantile, mechani- 
cal, mining or manufacturing business may be formed, but not for 
the purpose of banking or insurance. 

Xo such partnership shall be deemed to have been formed until a 
certificate — which shall contain the name or firm under which said 
partnership is to be conducted, the names and respective places of 
residence of all the general and special partners, distinguishing who 
are general, and who are special partners, the amount of capital 
which each special partner has contributed to the capital stock, the 
general nature of the business to be transacted, the time when the 
partnership is to commence and terminate — shall be made and sev- 
erally signed and acknowledged by all the partners, before an officer 
authorized to take acknowledgment of deeds, and recorded in the 
office of the Recorder of the county in which the principal place of 
business of the partnership is located. If there shall be a place of 
business in different counties, said certificate shall be recorded in 
each of such counties. A copy of such certificate shall be published 
three successive weeks in the county where the principal place of 
business is located. 

Any false statement in the certificate makes all the partners lia- 
ble as general partners. 

The special partners shall not be personally liable for any debts of 
the partnership, except their names be used in said firm with their 
consent or privity, or shall personally make any contract respecting 
the concerns of the partnership with any person except the general 
partner. 



Chap. 18.] idaho. 237 

CHAPTER XVIII. 

MARRIED WOMEN. 

All property, both real and personal, of the wife before marriage, 
and that acquired afterward, by gift, bequest, devise or descent, is 
her separate property, and all the husband's is his separate property. 
All other property acquired after marriage is common property. 

The wife is required to make, sign, acknowledge, and have re- 
corded a complete inventory of her separate property, in the office 
of the Recorder of the county where the property is situated. The 
husband has the management and control of the wife's separate 
property during marriage, but cannot alienate or create a lien or in- 
cumbrance on the same, except by instrument signed and acknowl- 
edged by both husband and wife. 

The District Court may, on application of the wife, appoint a 
trustee to take charge of and manage her separate property, if the 
husband mismanages it or commits waste. 

The husband has entire control of common property and his own 
separate property, and the rents and profits of all the separate prop- 
erty of both husband and wife are deemed common property, unless 
expressly provided in the instrument or devise to the contrary. 
Upon dissolution of the community by death, half of the common 
property goes to the survivor and half to the descendants, if there 
are any; if not, all to the survivor. Upon dissolution by decree of 
Court, the common property must be equally divided, unless the de- 
cree is granted on the ground of adultery or extreme cruelty, when 
the division of the same is left to the discretion of the Court grant- 
ing the decree. 

The separate property of the husband is not liable for the debts of 
the wife contracted before marriage, but the separate property of 
the wife is liable for all such debts. 



238 idaho. ' [Part 6 

CHAPTER XIX. 

CORPORATIONS. 



There is a general law for the formation of corporations, by which 
three or more persons may form a corporation by filing a certificate, 
in writing, with the Clerk of the District Court of the district in 
which the principal place of business of the corporation is intended 
to be located, and a certified copy of the same, under the hand of 
the Clerk and the seal of the Court, in the office of the Secretary of 
the Territory. Said certificate must state the corporate name of 
the company, the object for which it is formed, amount of capital 
stock, term of existence, (not to exceed fifty years) Dumber of 
shares, number of trustees and their names who shall manage the 
concerns of the corporation for the first three months, and principal 
place of business. 

The total amount of the debts of the corporation shall not, at any 
time, exceed the amount of the capital stock actually paid in ; and 
in case of any excess, the trustees under whose administration the 
same may have happened, except those who have caused their dis- 
sent therefrom to be entered at large on the minutes of the Board 
of Trustees at the time, and except those not present at the time 
when the same did happen, shall, in their individual and private 
capacities, be liable jointly and severally to the said corporation, 
and in the event of its dissolution, to any of the creditors thereof, 
for the full amount of such excess. 

Each stockholder shall be individually and personally liable for 
his proportion of all the debts and liabilities of the corporation, con- 
tracted or incurred during the time that he was a stockholder, for 
the recovery of which joint or several actions may be instituted ; 
and when a judgment in such action shall be recovered against joint 
stockholders, the Court on the trial thereof shall apportion the 
amount of the liability of each, and in the execution thereof no 
stockholder shall be liable beyond his proportion so ascertained. 



Chap. 20 and 21. J idaho. 239 

CHAPTER XX. 

CHATTEL MORTGAGES 

May be given upon all kinds of personal property. To be valid 
against subsequent incumbrancers, or purchasers in good faith, for a 
valuable consideration, the mortgage must show the residence, and 
the profession, trade or occupation of both the mortgagor and mort- 
gagee, and each of the parties must make affidavit thereto, that the 
mortgage is made in good faith, and without any design to hinder, 
delay or defraud creditors. When so made and recorded in the 
office of the Recorder of Deeds, such mortgage is good against all 
persons. 



CHAPTER XXI. 

INTEREST AND USURY. 



Ten per cent, per annum is the legal rate of interest. Parties 
may agree in writing for any rate of interest not exceeding one and 
a half per cent, per month, but any judgment rendered upon such 
contract bears only ten per cent, per annum. The penalty for a 
greater rate than above specified is three times the amount so paid, 
and the person receiving a greater rate than one and a half per cent, 
per month is liable to a fine of three hundred dollars, or six months' 
imprisonment, or both. Interest does not commence to run on open 
accounts until a balance is struck and agreed to, or a settlement is 
had. 



240 idaho. [Part 6. 

CHAPTEE XXII. 

AFFIDAVITS. 



An affidavit to be used before any Court, Judge or officer of this 
Territory may be taken before any Judge or Clerk of any Court, or 
any Justice of the Peace or Xotary Public in this Territory. - 

An affidavit taken in another State or Territory of the United 
States, to be used in this Territory, shall be taken before a Commis- 
sioner appointed by the Governor of this Territory to take affidavits 
and depositions in such other State or Territory, or before the Judge 
of a Court of record having a seal. An affidavit taken in a foreign 
country, to be used in this Territory, shall be taken before an Am- 
bassador, Minister or Consul of the United States, or before any 
Judge of a Court of record having a seal in such foreign country, or 
before a Commissioner of Deeds appointed by the Governor. 

When an affidavit is taken before a Judge of a Court in another 
State or Territory, or a foreign country, the genuineness of the sig- 
nature of the Judge, the existence of the Court, and the fact that 
such Judge is a member thereof, shall be certified by the Clerk of 
the Court under the seal thereof. 



Chap. 23.] idaho. 241 

CHAPTER XXIII. 

SOLE TRADERS. 

A married woman may become a sole trader by the judgment of 
the Probate Court of the county in which she has resided for six 
months next preceding the application. 

A person intending to make application to become a sole trader 
must publish notice of such intention in a newspaper published in 
the county, or if there be none, then in a newspaper published in an 
adjoining county, for four successive weeks. 

The notice must specify the term and the day upon which appli- 
cation will be made, the nature and place of the business proposed 
to be conducted by her, and the name of her husband. 

Ten days prior to the day named in the notice, the applicant must 
tile a verified petition, setting forth- — 

1. That the application is made in good faith, to enable the ap- 
plicant to support herself, and others dependent upon her, giving 
their names and relation. 

'2. The fact of insufficient support from her husband, and the 
causes thereof, if known. 

3. Any other grounds for application, which are good causes for 
a divorce, with the reason why a divorce is not sought ; and, 

4. The nature of the business proposed to be conducted, and the 
capital to be invested therein, if any, and the sources from which it 
is derived. 

The applicant may invest in the business proposed to be conducted 
a sum derived from the community property or of the separate prop- 
erty of the husband, not exceeding five hundred dollars. 

Any creditor of the husband may oppose the application by filing 
in the Court (prior to the day named in the notice) a written oppo- 
sition, verified, containing either : 

1. A specific denial of the truth of any material allegation of the 
petition, or setting forth — 



242 idaho. [Part 6. 

2. That the application is made for the purpose of defrauding the 
opponent; or, 

3. That the application is made to prevent, or will prevent him 
from collecting his debt. 

Issues of fact may be tried as in other cases. If the facts found 
sustain the petition, the Court must render judgment, authorizing 
the applicant to carry on in her own name and on her own account, 
the business specified in the notice and petition. 

The sole trader must make and file with the Clerk of the Court 
an affidavit, in the following form : 

" I, A. B., do, in presence of Almighty God, solemnly swear that 
this application was made in good faith, for the purpose of enabling 
me to support myself, (and any dependent, such as husband, parent, 
sister, child, or the like, naming them, if any) and not with any 
view to defraud, delay or hinder any creditor or creditors of my 
husband ; and that, of the moneys so to be used by me in business, 
not over five hundred dollars have come, either directly or indirectly 
from my husband ; so help me God." 

A certified copy of the decree, with this oath endorsed thereon, 
must be recorded in the office of the Recorder of the county where 
the business is to be carried on. 

A married woman who is adjudged a sole trader is responsible and 
liable for the maintenance of her minor children. 

The husband of a sole trader is not liable for any debt contracted 
by her in the course of her sole trader's business, unless contracted 
upon his written consent. 



Chap. 24.] idaho. 243 

CHAPTER XXIY. 

INSOLVENT DEBTORS. 



Every insolvent debtor may be discharged from his debts upon exe- 
cuting an assignment of all his property, real, personal or mixed, for 
the benefit of all his creditors ; provided, said assignment . shall be 
made bona fide and without fraud. 

The District Court only has jurisdiction in insolvent cases. The 
debtor must petition the Judge having jurisdiction within the place 
of his residence ; to his petition must be annexed his schedule, 
signed by himself, and by him sworn to before the said Judge in the 
following words, to wit : 

"I, A B, do, in the presence of Almighty God, truly and sol- 
emnly swear, that the schedule now delivered by me doth contain a 
full, perfect and true discovery of all the estate, real and personal, 
and mixed goods and effects to me in any way belonging; all such 
debts as are to me owing, or to any person or persons in trust for 
me; and all securities and contracts, whereby any money may here- 
after become payable, or any benefit or advantage accrue to me, or to 
my use, or to any person or persons in trust for me ; that I have no 
lands, money, stock or estate, reversion or expectancy, besides that 
set forth in my schedule ; that I have, in no instance, created or ac- 
knowledged a debt for a greater sum than I honestly and truly 
owed ; that I have not, directly nor indirectly, sold or otherwise 
disposed of in trust or concealed any part of my property, effects or 
contracts ; that I have not, in any way, compounded with my cred- 
itors, whereby to secure the same, or to receive or to expect any 
profit or advantage therefrom, or to defraud or deceive any creditor 
to whom I am indebted in any manner whatsoever, so help me 
God." 

The Judge will set apart all real and personal property exempt 
from execution to the use of the insolvent debtor and his family. 

The Judge receiving said petition, schedule and affidavit, shall 
make an order requiring all creditors of such insolvent to show 



244 Idaho. [Part 6. 

cause, if any they have, why an assignment of the insolvent's estate 
should not be made and he be discharged from his debts ; and shall 
direct the Clerk to issue a notice calling the creditors of insolvent 
to be and appear upon a specified day, not less than thirty, nor more 
than forty days from first publication, before said Judge, either at 
chambers or in open Court, as such Judge shall order, to show cause 
why the prayer of the insolvent should not be granted. Said notice 
must be published in the county newspaper, not less than thirty 
days; if no county paper, then in adjoining county. 

When issuing order for meeting of creditors, the Judge shall 
order all proceedings against the debtor stayed, except proceedings 
for foreclosure of mortgage or other liens, or of attaching creditors. 

At the meeting of creditors, one or more assignees, not exceeding 
three, may be appointed by a majority, in sums or in claims, of the 
creditors, who have certified on oath that their claims are legitimate 
and true. 

If the creditors fail to meet, or having met, fail to appoint an 
assignee, the Judge shall authorize the Sheriff of the county to per- 
form the functions of assignee, unless one of the creditors shall agree 
to act as assignee ; in that case the Judge shall appoint such creditor. 

All sales of property of an insolvent debtor by the assignee, shall 
be at public auction to the highest and best bidder for cash, after 
three weeks' notice in newspaper ; provided, if property is perisha- 
ble, it may be sold on seven days' notice after the appointment of 
assignees ; any one of the creditors may oppose it, on the ground of 
fraud of the insolvent debtor ; or, that assignees were not legally ap- 
pointed. His written opposition must be filed with the Court 
within ten days after such appointment ; the facts shall be tried by 
a jury of not less than six men. If the jury find the insolvent 
debtor guilty of fraud, he shall forever be deprived of the benefits 
of the laws passed for the relief of insolvent debtors in this Terri- 
tory ; shall forever be deemed incapable of holding any office of trust 
or profit under the government of this Territory ; shall moreover be 
liable to be prosecuted and punished as a perjurer, if he should be 
convicted of having foresworn himself in any of the declarations he 
may have made, agreeable to the provisions of this Act ; and if con- 
victed of fraud, he shall be sentenced by the Court to suffer impris- 
onment, at hard labor, in the Territorial prison, for a term not less 
than six months nor more than two years.. 



Chap. 24.] IDAHO. 245 

Fraudulent Bankrupts Are 

All persons who shall be convicted of having concealed their prop- 
erty, with the intention to keep it from their creditors ; all who 
shall be convicted of having concealed or altered their books or pa- 
pers, with the same intention ; all who shall be convicted of having 
passed sham deeds for the purpose of conveying the whole or any 
part of his property and depriving his creditors thereof ; or of hav- 
ing knowingly omitted to declare any of his property rights or 
claims in his schedule ; or of having purloined his books or any of 
them ; or of having altered, changed, or made them anew to an in- 
tent to defraud his creditors ; or of having alienated, mortgaged 
or pledged any of his property; or of having committed any other 
kind of fraud to the prejudice of his creditors, shall be considered a 
fraudulent bankrupt. 

Who Debarred the Benefits of this Act. 

Any debtor who shall be convicted of having at any time within 
three months next preceding his failure, sold, engaged or mortgaged 
any of his goods and effects, or of having otherwise assigned, trans- 
ferred or disposed of the same or any part thereof, or confessed 
judgment in order to give a preference to one or more of his 
creditors over the others, whereby to receive any advantage in an- 
ticipation of his failure, to the prejudice of his creditors. 

All debtors owing or accountable in any manner for public funds 
or property of whatever nature or kind ; all unfaithful depositories ; 
all such as refuse or neglect to pay up all funds received by them as 
bankers, brokers, commission merchants, or for money, goods or ef- 
fects received by them in a fiduciary capacity, shall be denied the 
benefits of this act. 

If after the presentation of his petition the insolvent shall sell, 
or in any manner transfer or assign any of his property, or collect 
any debts due him, and shall not give a just and correct account of 
the property so sold or transferred, and the moneys so collected, and 
pay the same over to the assignees within ten days of their appoint- 
ment, said debtor shall not receive the benefit of the act. 

Whenever any insolvent debtor has had the benefit of this act, if 
thereafter, at any time, it is made to appear that he has concealed 



246 Idaho. [Part 6. 

any part of his property or estate, or given a false schedule, or com- 
mitted any fraud under the provisions of this act, it is hereby de- 
clared that he has forfeited all benefit and advantage which he would 
otherwise have had by virtue of this act ; and he cannot avail him- 
self of any of its provisions in bar to any claim that may be insti- 
tuted against him. 

No person can apply for or receive the benefit of this act through 
an agent or attorney in fact. 

An hi solvent debtor can only be released and discharged from 
such debts and liabilities as he shall have set forth and named in his 
schedule, 

From and after the surrender of the property of the insolvent 
debtor, all property of such insolvent debtor shall be fully vested in 
his assignee or assignees for the benefit of his creditors, and shall not 
be liable to be seized, attached, taken or levied upon by virtue of 
any execution issued against the property of said insolvent, and the 
assignees who may be appointed shall take possession of, and be en- 
titled to claim and recover all the said property ; and to administer 
and sell the same as herein provided ; subject, however, to the 
rights of mortgagees, lien-holders and prior attaching creditors, 
w^hose prior rights shall in no wise be affected by the jn'ovisions of 
this act. 

Two or more creditors may, at any time, make a motion to know 
if the assignees have funds in their hands, and the said assignees 
shall be required to present their accounts, and if they have funds 
they shall distribute them without delay. 

If any creditors reside without the limits of the Territory the 
Judge shall appoint an attorney to represent them ; the fees of said 
attorney shall be paid from the money recovered for such non-resi- 
dents at the rate of ten per cent.; provided, in no case shall the fees 
exceed three hundred and fifty dollars. 



PART VII. 



WYOMING TERRITORY. 



PREPARED EXPRESSLY FOR THIS WORK BY C. N. POTTER, 

CHEYENNE. 



CHAPTER I. 

COURTS AND THEIR JURISDICTION. 

The Courts provided for this Territory are a Supreme Court, Dis- 
trict Courts, Probate Courts and Justices of the Peace. 

The Supreme Court has no original jurisdiction, except in habeas 
corpus cases. It exercises an appellate jurisdiction, principally in 
cases coming up from the District Courts. 

The District Courts have chancery and common law jurisdiction, 
and jurisdiction in appeals from the Justice and Probate Courts. 

The Probate Court has no jurisdiction except over probate busi- 
ness proper. 

The Justices of the Peace have no jurisdiction of any matter in 
controversy where the title or boundaries of land may be in dispute, 
or where the debt or sum claimed shall exceed one hundred dollars. 



248 Wyoming. [Part 7. 

CHAPTER II. 

TERMS OF COURTS, WHEN AND WHERE HELD. 

The Territory is divided into three Judicial Districts : Laramie 
County composes the first ; Albany and Carbon the second ; Sweet- 
water and Uinta the third. Terms of Court are held in each, as 
follows : 

At Cheyenne, commencing on the fourth Monday of May and 
first Monday of November of each year. 

At Laramie, commencing on the first Monday of February and 
August of each year. 

At Rawlins, commencing on the first Monday of April and second 
Monday of September of each year. 

At Areen River, on the first Monday of May and October of each 
year. 

At Evanston, commencing on the first Monday of January and 
July of each year. 



Chap. 3.] Wyoming. 249 



CHAPTER III. 

COMMENCEMENT OF ACTIONS, TIME TO ANSWER, 
PLACE OF TRIAL. 

Actions are commenced by filing in the office of the Clerk of the 
proper Court a petition, and causing a summons thereon to be is- 
sued. The summons is returnable on the second Monday after the 
day of its date, and the answer or demurrer of the defendant shall 
be filed on or before the third Saturday after the return day of the 
summons. 

Civil actions must be tried in the county, in which they are com- 
menced, unless upon application for a change of venue, based upon 
sufficient reasons, the Court orders the place of trial to be changed ; 
and in such case the Court must send the cause to the most conve- 
nient county. 



250 Wyoming. [Part 7. 

CHAPTER IV. 

LIMITATION OF ACTIONS. 

Actions for the recovery of real property can only be brought 
within twenty-one years after the cause of action shall have accrued, 
except actions of forcible entry and detainer, or forcible and unlaw- 
ful detention, only of real property, which must be commenced 
within two years after the cause of action shall have accrued. 

An action upon a specialty, or any agreement, contract or promise 
in writing, or on a foreign judgment, must be brought within fifteen 
years. And actions upon contract not in writing, express or im- 
plied, or upon a liability created by statute, must be brought within 
six years after the cause of action shall have accrued. 

Causes of action arising out of the Territory against a non-resi- 
dent are barred one year after the debtor becomes a resident. 



Chap. 5.] Wyoming. 251 

CHAPTER V. 

ATTACHMENTS. 



The creditor in a civil action for the recovery of money, may, at 
or after the commencement thereof, by filing the necessary affidavit, 
have an attachment against the property of the debtor, and upon the 
grounds herein stated : 

1. When the debtor, or one of several debtors, is a foreign cor- 
poration, or a non-resident of this Territory. 

2. Has absconded with the intent to defraud his creditors. 

3. Has left the county of his residence to avoid the service of a 
summons. 

4. So conceals himself that a summons cannot be served upon 
him. 

5. Is about to remove his property, or a part thereof, out of the 
jurisdiction of the Court, with the intent to defraud his creditors. 

6. Is about to convert his property, or a part thereof, into 
money, for the purpose of placing it beyond the reach of his cred- 
itors. 

7. Has property or rights in action which he conceals. 

8. Has assigned, removed, or disposed of, or is about to dispose 
of his property, or a part thereof, with the intent to defraud his 
creditors. 

9. Fraudulently contracted the debt or incurred the obligation 
for which suit is about to be or has been brought. 

But an attachment shall not be granted on the ground that the 
debtor is a foreign corporation, or a non-resident of this Territory, 
for any other claim than a debt or demand arising upon contract, 
judgment, or decree. 

When a foreign corporation or non-resident is defendant, the writ 
may issue without an undertaking. In all other cases the writ 
will not be issued by the Clerk of the Court until there has been 
executed and filed in his office an undertaking with sureties ap- 



252 wyomixg. [Part 7. 

proved by him, in double the amount of plaintiff's claim, to the 
effect that plaintiff shall pay all damages which defendant may sus- 
tain by reason of the attachment, if the writ be wrongfully ob- 
tained. 



CHAPTER VI. 



ARREST IN CIVIL ACTIONS. 



No person can be imprisoned for debt in any civil action on mesne 
or final process, unless in case of fraud. An order for the arrest of 
the debtor shall be made by the Clerk of the Court in which the ac- 
tion is brought, when there is filed in his office an affidavit of the 
creditor, or his authorized agent or attorney, made before any Judge 
of any Court of the Territory, or Clerk thereof, or Justice of the 
Peace, stating the nature of the creditor's claim, that it is just, and 
the amount thereof as nearly as may be, and establishing one or 
more of the following particulars : 

1. That the debtor has removed, or begun to remove, any of his 
property out of the jurisdiction of the Court, with intent to defraud 
his creditors. 

2. That he has begun to convert his property, or a part thereof, 
into money, for the purpose of placing it beyond the reach of his 
creditors. 

3. That he has property or rights of action which he fraudulently 
conceals. 

4. That he has assigned, removed, or disposed of, or has begun to 
dispose of his property, or a part thereof, with intent to defraud his 
creditors. 



Chap. 7.] Wyoming. 253 

5. That he fraudulently contracted the debt or incurred the obli- 
gation for which suit is about to be or has been brought. 

The affidavit must also contain a statement of the facts claimed to 
justify the belief in the existence of one or more of the above par- 
ticulars. The creditor, before the issuing of the order of arrest, 
must £ive bond in double the amount of the claim stated in the 
affidavit. The death of a person under arrest does not satisfy the 
judgment. 



CHAPTER VII. 

JUDGMENT LIENS. 

A judgment is a lien on the lands and tenements of a judgment 
debtor from the first day of the term at which it is rendered ; but 
judgments by confession and judgments rendered at the same term 
at which the action is commenced bind such lands only from the date 
of their rendition. 

If execution is not sued out within five years from the date of the 
rendition of judgment, such judgment becomes dormant, and ceases 
to operate as a lien. The judgment may subsequently be revived, 
but the lien is not restored, except from the date of revivor. 



254 Wyoming. [Part 7. 

CHAPTER VIII. 

EXECUTIONS, SALE, REDEMPTION AND EXEMPTIONS. 

Executions are of three kinds — 

1. Against the property of the judgment debtor. 

2. Against his person. 

3. For the delivery of the possession of real property, with dam- 
ages for withholding the same and costs. 

The officer having the writ must levy first on the goods and chat- 
tels of the debtor, but if no goods be found, he shall indorse on the 
writ "no goods," and forthwith levy the writ of execution upon 
the lands and tenements of the debtor liable to satisfy the judg- 
ment. 

The officer may sell goods and chattels seized, by first publishing 
notice of the time and place of sale, for a period of ten days. No- 
tice of the sale of lands and tenements must be published thirty 
days prior to the sale. 

There is now in this Territory no statute providing for the redemp- 
tion of property, either real or personal, sold on execution. 

The exemptions from levy, or seizure, are a homestead not exceed- 
ing in value $1,500, so long as it is actually occupied as such by the 
debtor and his family, the value to be ascertained by appraisers. 

So, too, the following personal property, when owned by the head 
of a family who is residing with the same : Furniture, bedding, and 
provisions, and such other articles as the debtor may select, not ex- 
ceeding in value $500. 

There is also exempt the necessary wearing apparel of every per- 
son, not exceeding in value $50. 

The tools, team and implements, or stock in trade of any mechanic, 
miner, or other person, used and kept for the purpose of carrying on 
his trade or business, not exceeding in value $300. Also the library, 
instruments and implements of any professional man, not exceeding 
in value 



Chap. 9.] Wyoming. 255 

There is no exemption in favor of a person not an actual resident 
of the Territory, nor one about to remove or abscond therefrom. 
And no article of property is exempt from attachment or sale, upon 
execution for the purchase money of said article of property. 



CHAPTER IX. 

PROCEEDINGS IN AID OF EXECUTIONS. 

Proceedings in aid of executions may be had, in which the debtor 
may be examined and compelled to disclose and appropriate to the 
payment of the judgment any property which he may have unjustly 
refused to apply to that purpose. 

A receiver may be appointed to take and dispose of such property 
of the judgment debtor that may be unearthed on examination, 
either legal or equitable, and appropriate the proceeds to the pay- 
ment of the judgment. 



256 Wyoming. [Part 7. 

CHAPTER X. 

SECURITY FOR COSTS. 

In all cases in which the plaintiff is a resident of the county in 
which the action is brought, he must furnish security for costs be- 
fore commencing such action. Security need not be furnished, pro- 
vided costs are paid as they accrue. 



CHAPTER XL 

APPEALS. 



In actions at law, final judgments and orders may be reviewed on 
writ of error, or petition in error sued out at any time within three 
years after rendition. 

In chancery cases, review may be had by appeal, if the appeal is 
perfected within thirty days after the decree complained of. 

Where the judgment or decree sought to be reviewed is for the 
payment of money, security must be given in double the amount of 
the decree or judgment. In other cases the amount of security is 
fixed by the Court. 



Chap. 12 and 13.] Wyoming. 257 

CHAPTER XII. 

ESTATES OF DECEASED PERSONS. 



Estates of deceased persons are settled in the Probate Courts 
through the usual means of executors and administrators. 

Claims against the estate must be presented within one year after 
the granting of letters testamentary or of administration, and if 
not so presented, are forever barred. 

Every executor and administrator must exhibit a statement of the 
accounts of his administration for settlement, with proper vouchers, 
to the Probate Court, at its first term after the end of six months 
from the date of his letters, and at the corresponding term of Court 
every six months until administration be completed. 



CHAPTER XIII. 

DESCENTS AND DISTRIBUTION OF PROPERTY. 

1. Whenever any person having title to any real estate, or prop- 
erty having the nature or legal character of real estate, or personal 
estate undisposed or otherwise limited by marriage settlement, shall 
die intestate as to such estate, it shall descend and be distributed in 
parcenary to his kindred, male and female, subject to the payment 
of his debts, in the following course and manner, namely : If such 
intestate leave a husband or wife and children, or the descendants of 
any children, him or her surviving, one-half of such estate shall de- 



258 wyomixg. [Part 7. 

scend to such surviving husband or wife, and the residue thereof to 
such surviving children and descendants of children as hereinafter 
limited ; if such intestate leave a husband or wife and no child or 
descendants of any child, then the real and personal estate of such 
intestate shall descend as follows, to wit : Three-fourths thereof to 
such surviving husband or wife, and one-fourth thereof to the father 
and mother of the intestate, or the survivor of them ; provided, 
That if the estate of such intestate, real and personal, does not ex- 
ceed in value the sum of ten thousand dollars, and such intestate 
leave a husband or wife and no child nor descendant of any child, 
then the whole thereof shall descend to and vest in the surviving 
husband or wife as his or her absolute estate, subject to the payment 
of debts as aforesaid. Dower and the tenacy by the courtesy are 
abolished, and neither husband nor wife shall have any share in the 
estate of the other save as herein provided. Except in cases above 
enumerated, the estate of any intestate shall descend and be dis- 
tributed as follows : 

First — To his children surviving, and the descendants of his 
children who are dead, (the descendants collectively taking the 
share their parent would have taken if living). 

Seconal — If there be no children nor their descendants, then to 
his father, mother, brothers and sisters, and to the descendants of 
brothers and sisters who are dead, (the descendants collectively 
taking the share their parent would have taken if living) in equal 
parts. 

Third — If there be no children nor their descendants, nor father, 
mother, brothers, sisters, nor descendants of deceased brothers or 
sisters, nor husband nor wife living, then to the grandfather, grand- 
mother, uncles, aunts and their descendants, (the descendants taking 
collectively the share of their immediate ancestors) in equal parts. 

2. All posthumous children or descendants of the intestate shall 
inherit in like manner as if born in the lifetime of the intestate ; 
but no right of inheritance shall accrue to any person other than 
the children or descendants of the intestate, unless they are in being 
and capable in law of taking as heirs at the time of the intestate's 
death. 

3. Children, and descendants of children of the half-blood shall 
inherit the same as children and descendants of the whole blood, but 



Chap. i3.] Wyoming. 259 

collateral relations of the half-blood shall inherit only half the 
measure of collateral relatives of the whole blood, if there be any of 
the last-named class living. 

4. Where any of the children of the intestate shall have received 
in his lifetime any real or personal estate, by way of advancement, 
and the other heirs desire it to be charged to him, the Probate 
Judge shall cite the parties to appear before him, shall hear proof 
upon the subject, and shall determine the amount of such advance- 
ment or advancements to be thus charged. 

5. The maintenance, education or supply of money to a child 
under the age of majority, without any view to apportion or settle- 
ment in life, shall not be deemed an advancement under section four. 

6. The alienage of the descendants shall not invalidate any title 
to real estate which shall descend from him or her. 

7. Illegitimate children shall inherit the same as those born in 
wedlock, if the parents subsequently intermarry, and such children 
be recognized after such intermarriage by the father to be his. Ille- 
gitimate children inherit from the mother, and the mother from the 
children. 

8. Divorces of husband and wife shall not affect the right of chil- 
dren personally together, to, inherit their property. 

9. Probate Judges and administrators of the estates of persons dy- 
ing intestate within this Territory, shall apportion and distribute es- 
tates of intestates according to this Act. 

10. The rule of descent of all property of whatsoever kind or na- 
ture, real or personal, of any bastard or illegitimate person, dying 
intestate in this Territory, and leaving property and effects therein, 
shall be as follows, to wit : On the death of any such person intes- 
tate, his or her property, estate and effects shall descend to and vest 
in the widow, or the suvriving husband and children, as the prop- 
erty and effects of other persons in like cases. In case of the death 
of any such illegitimate person leaving no children, or descendants 
of a child or children, then the whole property and estate, rights, 
credits and effects shall descend to and vest in the widow or surviv- 
ing husband. In case of any such illegitimate person leaving no 
widow, surviving husband, or descendants, then the property and 
estate of such person shall descend to and vest in the mother and 
her children, and their descendants ; to the mother one-half, and 



260 wyomixg. [Part 7. 

the other half to be equally divided between her children and their 
descendants, the descendants of a child taking the share of their de- 
ceased parent or ancestors. In case of the death of any such ille- 
gitimate person leaving no heirs as above provided, then the prop- 
erty and effects, of whatsoever kind or nature, shall pass to and vest 
in the next of kin to the mother of such illegitimate person, in the 
same manner as the estate of a legitimate person would, by law, pass 
to the next of kin. 

11. If any decedent leaves a widow residing in this Territory, in 
all cases she shall be allowed to have and retain as her sole and sepa- 
rate property, one bed and bedding, wearing apparel for herself and 
family, two cows, her saddle and bridle, one horse, household furni- 
ture for herself and family, and also the same amount and species of 
property, real and personal, as is or may be by law exempt from ex- 
ecution. Said property shall be retained by the widow, and set 
apart to her by the executor or administrator, and shall in no case 
be subject to the payment of debts of the deceased. 

12. When an inventory shall have been made of the personal es- 
tate of any testator or intestate, the widow may relinquish her right 
to all of the specified articles of property allowed to her by the pre- 
ceding section ; or in case the intestate shall not leave any or all of 
the articles specified, in either case she shall be entitled to other 
property, or the value of the same in money ; and it shall be the, duty 
of the administrator or Court of Probate to allow the value of the 
articles specified by law to be set apart to the widow of any intes- 
tate, to be allowed her in money, or other personal property, at her 
election. 

13. The right of a widow to her separate property shall in no case 
be affected by her renouncing, or failing to renounce, the benefit of 
the provisions made for her in the will of her husband, or otherwise. 



Chap. 14.] WYOMING. 26 1 

CHAPTER XIV. 

DEPOSITIONS. 

No person is disqualified as a witness by reason of his interest in 
the event of suit. 

Depositions may be taken as soon as a case is commenced, and 
may be used when the witness does not reside in the county where 
the action is pending, or is absent therefrom ; or when from age or 
infirmity or imprisonment of the witness he is unable to attend 
Court, or is dead; or when in any case oral examination is not re- 
quired ; or in cases of appeals from Justices' Courts. 

They may be taken in or out of the Territory, before a Justice of 
the Peace, Chancellor, or Judge of any Court of record, Notary Pub- 
lic, Mayor, or chief Magistrate of any city or town corporate, a Com- 
missioner appointed by the Governor of the Territory, or any person 
authorized by special commission from the Territory. 

They may be taken in narrative form or by questions and an- 
swers, except in chancery cases, in which they must be taken on 
interrogatories and cross-interrogatories, settled before issuing the 
commission. In law cases they may be taken on notice or commis- 
sion issued by the Clerk of the Court. 



262 WYOMING. [Part 7. 



CHAPTEE XV. 



JUDICIAL RECORDS. 

The judicial records of another State must be proven in accord- 
ance with the provisions of the Act of Congress, except judgments 
of Justices of the Peace, whose proceedings may be authenticated by 
their own certificate, supported by the official certificate of the Clerk 
of any Court of record in the county in w^hich such Justice resides, 
that his signature is genuine, and that he is an acting Justice of the 
Peace of that county. 



CHAPTEE XVI. 

ACKNOWLEDGMENTS. 



Deeds or mortgages, executed within this Territory, of lands or 
any interest in lands, shall be executed in the presence of two 
witnesses, who shall subscribe their names to the- same as such ; 
and the person executing such deeds or mortgages may acknowl- 
edge the execution thereof before any Judge or Clerk of a 
Court of record, or before any County Clerk, or before any Notary 
Public or Justice of the Peace within the Territory ; and the officer 
taking such acknowledgment shall indorse thereon a certificate of 
the acknowledgment thereof, and the true date of making the same, 
under his hand and seal of office, if there be one. 



Chap. 16.] Wyoming. 263 

If any such deed or mortgage shall be executed in any other 
State, Territory or District of the United States, such deed or mort- 
gage may be executed according to the laws of such State, Territory 
or District, by any officer authorized by the laws of such State, 
Territory or District to take the acknowledgment of deeds or mort- 
gages therein, or before any Commissioner appointed by the Gov- 
ernor of this Territory for such purposes. 

In the cases provided for in the last preceding section, unless the 
acknowledgment be taken before a Commissioner appointed by the 
Governor of this Territory for that purpose, such deed or mortgage 
shall have attached thereto a certificate of the Clerk or other proper 
certifying officer of the Court of record of the county or district 
within which such acknowledgment was taken, under the seal of his 
office, that the person whose name is subscribed to the certificate of 
acknowledment was, at the date thereof, such officer as he is therein 
represented to be; that he knows the signature of such person sub- 
scribed thereto to be genuine, and that the deed or mortgage is ex- 
ecuted and acknowledged according to the laws of such State, 
Territory, or District. 



264 Wyoming. [Part 7. 

CHAPTER XVII. 

LIMITED PARTNERSHIPS. 

Limited partnerships may be formed by two or more persons. 
There may be general partners, so-called, and special partners. Par- 
ties forming must sign a certificate stating : 

1. The name under which it is to be conducted. 

2. Nature of business to be transacted. 

3. Names and residences of the parties, specifying which are gen- 
eral and special. 

4. Amount of stock each special partner contributes to the com- 
mon stock. 

5. Period of its beginning and ending. 

The certificate must be acknowledged and recorded in the County 
Clerk's office of the county in which principal business is to be done. 
Each partner must also make an affidavit that the sums stated in the 
certificate have been actually paid in ; the certificate must be pub- 
lished. The general partners only have authority to transact the 
business. The general partners are liable to the same extent as gen- 
eral partners in any partnership. 



Chap. 18 and 19.] Wyoming. 265 

CHAPTER XVIII. 

MARRIED WOMEN. 

Married women retain their property, real and personal, which 
they had at marriage, or which they acquire thereafter from any per- 
son other than their husband, in good faith, as their own, free from 
the husband's control, and free from liability for his debts. They 
may bargain, sell and convey personal property as if they were sole ; 
may make a will, be sued and sue as if they were sole; may carry 
on any trade or business on their own account. The husband is not 
liable for the debts of the wife contracted before marriage. When 
judgment is rendered against both for the tort of the wife, the judg- 
ment must be satisfied first out of the property of the wife, if she 
have any. 



CHAPTEE XIX. 

CHATTEL MORTGAGES. 

Chattel mortgages must be executed in the presence of two wit- 
nesses, and acknowledged before some one authorized to take ac- 
knowledgment of deeds, and filed in the office of the County 
Recorder of the county where the property is ; and it then becomes 
a lien on the property described therein, and the lien is good until 
the debt secured by the mortgage is clue, and for two months there- 
after, unless before expiration of the two months foreclosure pro- 
ceedings be commenced, in which case lien continues until termina- 



266 Wyoming. [Part 7. 

tion of such proceedings ; and if it so provide, the property mort- 
gaged may be left in possession of the mortgagor. All goods and 
chattels may be mortgaged. 



CHAPTER XX. 

INTEREST AND USURY. 



The legal rate of interest is twelve per cent, per annum ; but any 
rate that may be agreed on is legal. Judgments draw twelve per 
cent, from the date of their rendition. 



Chap. 21.] Wyoming. 267 

CHAPTER XXL 

ASSIGNMENTS. 

An insolvent debtor may make an assignment and is considered 
insolvent when unable to pay his debts as they become due. 

An assignment is void against creditor not assenting in following 
cases : 

1. If it gives preference. 

2. If it tends to coerce any creditor to release or compromise his 
demand. 

3. If it provide for the payment of any claim known to be false, 
or the payment of more upon one claim than is known to be due. 

4. If it reserve to the assignor any interest before all debts are 
paid. 

5. If it confer upon assignee any power which, if exercised, might 
delay the execution of the trust. 

6. If it exempt him from liability for neglect or misconduct. 

The deed must be in writing, signed, sealed, acknowledged, and 
recorded in the office of the Probate Judge of the proper county, 
otherwise it is void against all parties not assenting thereto. 

The assignor must make and file an inventory of the estate within 
twenty days after the assignment. 

The assignee must, within thirty days after the assignment, enter 
into bonds to be fixed by the Probate Judge, conditioned for the 
faithful accounting of moneys and discharge of the trust. 

After six months from date of assignment, the assignee may be re- 
quired to account on petition of any creditor. And the Probate 
Judge must, as soon as possible, settle the estate. 

In all cases where the assignor complies with the provisions of the 
act, any creditor accepting from the assignee his dividend arising 
from the property of the assignor, to which he would be entitled 
under any assignment made under the act, shall release the assignor 
from all further liability on the claim or claims on which said pay- 
ment may be made, 



PART VIII. 



MONTANA TERRITORY. 



PREPARED EXPRESSLY FOR THIS WORK BY W. E. CULLEN, 

HELENA. 



CHAPTER I. 

COURTS, THEIR JURISDICTION AND TERMS. 

The Courts of the Territory are a Supreme Court, District Courts, 
Probate Court, and Justice of the Peace. 

The Supreme Court has appellate jurisdiction only. 

The District Courts have original jurisdiction of all civil cases 
where the amount in controversy exceeds fifty dollars, and of all 
felonies ; also appellate jurisdiction from the Probate and Justices' 
Courts. 

The Probate Court, in addition to Probate matters, has jurisdic- 
tion in civil actions to the amount of five hundred dollars ; except 
where the title or right to the possession of land is in question, and 
in chancery and divorce cases. The Probate Court also has juris- 
diction of such criminal cases arising under the laws of the Terri- 
tory as do not require the intervention of a Grand Jury. 



270 



MONTANA. 



[Part 8. 



Justices of the Peace have jurisdiction where the title of land 
is not in dispute, and where the debt or sum claimed does not exceed 
one hundred dollars. 

The District Court, when sitting at Helena, Deer Lodge and 
Virginia City, has the same jurisdiction as the Circuit and District 
Courts of the United States, and the first six days of each term 
at said places are appropriated to the trial of causes arising under 
the Constitution and laws of the United States. 

Terms of District Courts, 1879. 



COUNTY. 


COUNTY SEAT. 


i>ist. 


WHEN HELD. 






2d. 


First Monday in June, second Monday Tn October. 
First Monday in May, third Monday in September. 


Choteau .... 


Fort Benton 


3d 


Custer 


Miles City 


1st 


Fourth Monday in May, third Monday in September. 


Deer Lodge. 


Deer Lodge 


2d 


( Second Monday in April, first Monday in Septem- 
( ber, first Monday in December. 


Gallatin 


Bozeman 


1st 


First Monday in May, second Mondaj- in November. 


Jefferson . . . 


Radersburg 


3d 


Second Tuesday in April, second Monday in October. 


Madison 


Virginia City 


1st 


( Second Tuesday in April, second Monday in Oct'r. 
( First Mon. in July for trial of cases without a jury. 


Meagher . . . 


Diamond City 


3d 


Third Monday in April, third Monday in October. 


Meissoula . . . 


Meissoula..... 


2d 


Fourth Monday in June, second Monday in Nov'r. 


Lewis&Clark 




3d 


First Monday in March and first Monday in Novem'r. 





Terms of the Supreme Court are held at the Capital, Helena, on 
first Monday in January and second Monday in August. 



Chap. 2.] Montana. 371 



CHAPTER II. 

TIME ALLOWED DEFENDANT TO ANSWER— PLACE 
OF TRIAL OF CIVIL ACTIONS. 

Time Allowed Defendant to Answer. 

Ten days if served in the county ; twenty days if served outside 
the county, but in the district ; forty days in all other cases. 

Place of Trial of Civil Actions. 

Actions for the recovery of real estate, or for injuries thereto, for 
partition thereof, or for foreclosure of mortgage thereon, must be 
tried in the county where the same is situated. 

Actions for the recovery of a penalty or forfeiture imposed by 
statute, or against a public officer, must be tried in the county where 
the cause arose. 

In all other cases the action is to be tried in the county in which 
the defendant may reside, or in the county where the plaintiff re- 
sides and the defendant may be found. 



272 Montana. [Part 8. 

CHAPTEE III. 

LIMITATION OF ACTIONS. 



Upon a judgment or decree of a United States Court, or of any- 
State or Territory, six years. 

Upon any contract, obligation or liability, founded upon an in- 
strument of writing, six years. 

Actions for the recovery of real property, or the possession thereof, 
must be commenced within five years. 

Actions for waste or trespass upon real property ; for a liability 
created by statute, other than a penalty or forfeiture ; for taking, 
detaining or injuring goods or chattels, and for relief on the ground 
of fraud, must be commenced within two years. 

Actions against a Sheriff, Coroner, or Constable, for any act in 
his official capacity, must be commenced within two years. 

Actions upon an account, contract, obligation or liability not 
founded upon an instrument of writing, must be commenced within 
two years. 

An action for libel, slander, assault, battery or false imprison- 
ment, must be commenced within two years. 

An action upon a statute for a penalty or forfeiture, or an action 
against a Sheriff or other officer for the escape of a prisoner, arrested 
upon civil process, must be commenced within one year. 

There is no limitation upon the right to maintain an action for 
the recovery of money or other property deposited with any bank, 
banker, trust company, or savings and loan society. 

Actions for relief not provided for, as above, must be commenced 
within three years after the cause of action accrued. 

If the party against whom the action accrues is out of the Terri- 
tory at the time, the statute does not run until his return, and if, 
after the action has accrued, he depart from the Territory, the time 
of his absence is not a part of the time limited for the commence- 
ment of an action. A part payment revives a debt which has been 
barred. No acknowledgment or promise is sufficient to take a case 



Chap. 4.] Montana. 273 

out of the statute, unless it be in writing and signed by the party to 
be charged. A cause of action arising in any other State or Terri- 
tory, and barred by the laws of such State or Territory, cannot be 
maintained here. 



CHAPTER IV. 

ATTACHMENTS— ARRESTS IN CIVIL CASES. 

Attachments. 

An attachment will issue in all cases where an affidavit is made 
by or on behalf of the plaintiff, that the defendant is indebted to 
the plaintiff upon a contract for the payment of money, gold dust 
or other property then due, which is not secured by a mortgage, lien 
or pledge upon either real or personal property ; and upon giving an 
undertaking in double the amount of the debt sought to be recov- 
ered, unless the sum claimed equals or exceeds ten thousand dollars, 
in which case the undertaking is only required to be in the sum of 
ten thousand dollars, conditioned that the plaintiff will pay all costs 
that may be awarded to the defendant, and all damages which he 
may sustain by reason of such attachment, if the defendant recovers 
judgment, or the Court finally decides that the plaintiff was not en- 
titled to an attachment. 

Arrests in Civil Cases. 

Arrest may be had in all cases of fraud, or when the action is 
for willful injury to person or character, or to property, knowing the 
property to belong to another. 



274 Montana. [Part 8. 



CHAPTER Y. 



JUDGMENT LIENS, EXECUTIONS, EXEMPTIONS, SALE, 
AND REDEMPTION. 

A judgment rendered by the District Court is a lien upon all the 
real estate of defendant in the county wherein it is docketed, and is 
such lien for the period of six years. 

Execution may be issued at any time within six years after the 
entry of the judgment. Executions may be issued to several coun- 
ties at the same time. 

The following articles are exempt from execution : Wearing ap- 
parel of judgment debtor and family ; also, all chairs, tables, desks, 
to the value of $100 ; all necessary household and kitchen furni- 
ture, including stoves, stovepipes and stove furniture, beds, bedding 
and provisions, and fuel actually provided for use sufficient for two 
months ; and also one horse, two cows with their calves, two swine 
and fifty domestic fowls ; also to a farmer, farming utensils not ex- 
ceeding in value six hundred dollars, also two oxen or one horse, or 
mule and their harness, two cows, one cart or wagon, and food for 
such animals for three months ; also all seed grain or vegetables ac- 
tually reserved for planting or sowing at any time within six months, 
not exceeding in value the sum of two hundred dollars. 

To a mechanic or artisan, tools or implements necessary to carry 
on his trade. 

To a physician, surgeon or dentist, the instruments and chest nec- 
essary to the exercise of his profession, together with his library. 

To an attorney at law, or a minister of the gospel, their libraries. 

To a miner, his cabin, not to exceed in value $500 ; also his 
sluices, pipes, hose, windlasses, derrick, cars, pumps, tools, imple- 
ments and appliances necessary for mining, not exceeding in value 
in the aggregate the sum of 8500 ; also one horse or mule, or two 
oxen, and food for the same for three months, and their harness, 
when necessary to be used for any windlass, derrick or pump. 

To a cartman, truckster, peddler, teamster or laborer, one horse or 



Chap. 5.] Montana. 275 

mule, or two oxen and their harness, and one cart or wagon, by the 
use of which such person habitually earns his living ; also food for 
sucli animals for three months. 

Also the earnings of the judgment debtor for thirty days next 
preceding the levy of execution, when such earnings are necessary 
for the support of the debtor's family. 

A homestead not exceeding in value $2,500 ; if agricultural land, 
not more than 160 acres; if within the limit of a town or city or 
village, not more than one-fourth of an acre. 

The Sheriff is required to give notice of sale as follows : by post- 
ing notice of the time and place of such sale in three public places 
of the township or city where the sale is to take place, for such time 
as may be reasonable in case of perishable property ; in case of other 
personal property, not less than five nor more than ten days. 

In case of real property, by posting a similar notice for twenty 
days, and publishing a copy thereof once a week for the same period, 
in some newspaper published in the county, if there be one. In all 
sales of real property, where the estate is greater than the unexpired 
term of a two years' lease, the same may be redeemed within six 
months from such sale, by — first, the judgment debtor; second, a 
creditor having a lien by judgment or mortgage on the property sold, 
or some part thereof. 



276 montasa. [Part 8. 

CHAPTER VI. 

PROCEEDINGS SUPPLEMENTARY TO EXECUTIONS. 

When an execution is returned unsatisfied, the judgment creditor 
may compel the debtor to appear before a Judge and answer con- 
cerning his property, and upon such hearing witnesses may be exam- 
ined. If any property is found, the Judge may order the same ap- 
plied on execution. 



CHAPTER VII. 

SECURITY FOR COSTS— APPEALS. 

Security for Costs. 

Security may be required in all cases where suit is brought by a 
non-resident ; and where such security is required, all proceedings 
are stayed, and the action will be dismissed unless an undertaking is 
filed in such an amount as may be fixed by the Court within thirty 
days. 

Appeals. 

Same as in California. 



Chap. 8.] Montana. 277 



CHAPTER VIII 



ESTATES OF DECEASED PERSONS. 

The widow or minor children of a deceased person are entitled to 
remain in possession of the homestead, of all wearing apparel and 
household furniture of the decedent, and are also entitled to a rea- 
sonable provision for their support. 

The wife and minor children are entitled to the homestead, if 
there be one, and to all personal property of the decedent exempt 
from execution. If upon the return of the inventory it appears 
that the value of the whole estate does not exceed $1,500, it must 
be assigned for the use of the widow and minor children, after the 
payment of the expenses of the last illness, funeral charges, and the 
expense of administration. 

Every executor or administrator must immediately after his ap- 
pointment publish a notice to the creditors of the estate requiring 
them to present their claims to him with proper vouchers. If the 
value of the estate exceeds ten thousand dollars, such claims must 
be presented within ten months ; if under that sum, within four 
months ; and unless they are so exhibited within the time aforesaid 
they are barred. Every claim must be supported by the affidavit of 
the claimant, or some one in his behalf, setting forth that the claim 
is justly due, that no payments have been made thereon which are 
not credited, and that there are no offsets to the same. If the claim 
is not due when presented, or is contingent, the particulars must be 
stated. When claims are thus exhibited, the administrator must, 
within ten days, indorse upon it his allowance or rejection, with date 
thereof. If he allows the claim, it must be presented to the Pro- 
bate Judge for his ajJproval, who must in the same manner indorse 
upon it his allowance or rejection. A failure by either of said offi- 
cers for a period of ten days to make such indorsement is equivalent 
to a rejection. 

When a claim has been rejected either by the administrator or 



'278 MONTANA. [Part 8. 

Probate Judge, the holder must bring suit within three months from 
the date of such rejection, if it be then due, or within two months 
after it becomes due, otherwise the claim is barred. 



CHAPTER IX. 

DEPOSITION — JUDICIAL RECORDS — ACKNOWLEDG- 
MENTS. 

Depositions. 
Same law as in California, from which our code was taken. 

Judicial Records 

Of another State or Territory are proved by the production of exem- 
plified copies. 

Acknowledgments. 

Every conveyance affecting real estate must be in writing and ac- 
knowledged, or proved and certified. The following is a general 
form of acknowledgment, viz : 

Territory of Montana, I 

County of j 

Be it remembered, that on this day of— — , 187 — , before the 

undersigned, a (title of office) within and for the county aforesaid, 

personally appearing, came to me, personally known to me to be 

the same person mentioned in and who executed the foregoing in- 
strument, and he acknowledged to me that he had so executed the 



Chap. 10.] MONTANA. 279 

same freely and voluntarily, and for the uses and purposes therein 
expressed. 

Witness my hand, etc. 

If a married woman is a party, the certificate must state that the 
officer examined her apart from and without the hearing of her hus- 
band, and that she then acknowledged that she executed the same 
freely and voluntarily, without fear of or under compulsion of her 
said husband, and that she did not wish to retract the execution of 
the same. 



CHAPTER X. 

LIMITED PARTNERSHIPS 

May be created by two or more persons who shall be responsible as 
general partners, and two or more persons who shall contribute to 
the common stock a specific sum in actual cash payments. 

The special partners not to be liable for any debt of the partner- 
ship. In order to create such partnership it is necessary that a 
certificate, stating the name of the partnership firm, the place of res- 
idence of each of the general and special partners, the amount of the 
capital which each special partner has contributed, the general 
nature of the business, the time when the partnership is to com- 
mence and when it is to terminate, shall be made, acknowledged 
and recorded in the office of the County Recorder of the county in 
which the principal place of business of the partnership is located. 
Any false statement in such certificate subjects all parties to liability 
as general partners. 



280 Montana. [Part 8. 



CHAPTER XI. 

MARRIED WOMEN 

Are liable on their contracts made for benefit of or with reference 
to their separate property. They may become sole traders by filing 
a certificate in the County Recorder's office, and conduct business as 
afemme sole. 

All the property owned by a married woman, before her mar- 
riage, and all that she may acquire after her marriage, by descent, gift, 
grant, devise, or otherwise, and the increase, use, and profits thereof, 
are exempt from her husband's debts, unless for necessary articles 
procured for herself, and her children under eighteen years of age ; 
but in order to secure such exemption, such property must be men- 
tioned in a list of her separate property, which list must be of 
record in the office of the County Recorder of the county in which 
she resides. 



Chap. 12.] MONTANA. 281 



CHAPTEK XII. 

CORPORATIONS — CHATTEL MORTGAGES — INTEREST. 

Corporations. 

There is no individual liability of stockholders for indebtedness 
of a corporation, beyond the amount of the unpaid stock which they 
hold 

Chattel Mortgages. 

All personal property may be pledged or mortgaged, and such 
mortgage must be foreclosed promptly when due. No chattel mort- 
gage can be made for a longer period than twelve months. 

Interest and Usury. 

The legal rate of interest is ten per cent., but any rate for which 
parties may contract is collectable. There is no usury law. 



282 Montana. [Part 8. 

CHAPTER XIII. 

INSOLVENCY. 

There is no insolvency law in this Territory. 



CHAPTER XIV. 

COMMERCIAL TRAVELERS' LICENSE. 

The Commercial Travelers' Act, passed at the extraordinary ses- 
sion, A. D. 1879, provides that every commercial traveler, agent, 
drummer, or other person selling, or offering to sell any goods, 
wares, or merchandise, to be delivered at some future time, shall pay 
a license therefor into the County Treasury of twenty-five dollars 
in each county wherein he may transact business. The license au- 
thorizes the person to whom it is issued to carry on his business in 
such county for the period of three months from the date of its issu- 
ance. It is made the duty of all Justices of the Peacej Constables, 
Sheriffs, and other peace officers, to demand the license of every per- 
son who is selling, or offering to sell, goods in his county ; and if 
such person is found not to have a license, or if, upon demand made, 
he does not exhibit the same, he is to be deemed guilty of a misde- 
meanor, and, upon conviction thereof before any Court of competent 
jurisdiction, shall be fined in any sum not less than fifty dollars, 
nor more than one hundred dollars, 



PART IX. 



ARIZONA TERRITORY. 



CHAPTER I. 

COURTS AND THEIR JURISDICTION. 

The following are the Courts of justice for the Territory : 

1. The Supreme Court. 2. The District Courts. 3. The Probate 
Courts. 4. The Justices' Courts. 

The Supreme Court has appellate jurisdiction in all cases wherein 
the legality of any tax, toll, impost, or municipal fine is in question. 
It also has jurisdiction to review upon appeal — 

First — A judgment in action or proceeding commenced in a Dis- 
trict Court, or brought into that Court from another Court, where 
the matter in dispute exceeds one hundred dollars, or when the pos- 
session of, or title to, lands or tenements is in controversy ; and to 
review upon the appeal from such judgment any intermediate or col- 
lateral order of the Court or Judge at Chambers, involving the mer- 
its and necessarily affecting the judgment. 

Second — An order granting or refusing a new trial, sustaining or 
overruling a demurrer, or affecting a substantial right in an action 
or proceeding. 

This Court may reverse, affirm, or modify the judgment or order 



284 Arizona. [Part 9. 

appealed from ; as to any or all the parties, and may, if necessary, 
order a new trial. 

When the judgment or order is reversed or modified, this Court 
may make complete restitution of all property and rights lost by the 
erroneous judgment or order. 

The District Courts have jurisdiction as follows: 

Original jurisdiction in all civil cases where the amount exceeds 
one hundred dollars, exclusive of interest, and in cases involving the 
title or possession of real property. 

Appellate jurisdiction in Justice-Court actions, and orders of 
judgments of the Probate Courts in certain cases. 

The Probate Courts have jurisdiction of estates of deceased 
persons. 

Justices' Courts have jurisdiction as follows: 

1. Of an action arising on contract for the recovery of money only, 
if the sum claimed does not exceed three hundred dollars. 

2. Of an action for damages for injury to the person, or for tak- 
ing or detaining personal property, or for injuring real or personal 
property, if the damages claimed do not exceed three hundred 
dollars. 

3. Of an action upon a bond conditioned for the payment of 
money not exceeding three hundred dollars, though the penalty ex- 
ceed that sum, the judgment to be given for the sum actually due ; 
when the payments are to be made by installments, an action may 
be brought for each installment as it becomes due. 

4. Of an action for the foreclosure of any mortgage, or the en- 
forcement of any lien on personal property, where the debt secured 
does not exceed three hundred dollars. 

5. Of an action to recover personal property, when the value of 
such personal property does not exceed three hundred dollars. 

Their jurisdiction does not extend to civil actions in which the 
title to real property is brought in question ; nor to an action or 
proceeding against ships, vessels or boats, or against the owners or 
masters thereof, when the suit or proceeding is for the recovery of 
wages for a voyage performed, in whole or in part, without the wa- 
ters of this Territory. 



Chap. 2.] Arizona. 285 

CHAPTER II. 

TERMS OF COURTS— WHEN AND WHERE HELD. 

The Supreme Court is held at the seat of government, (now 
Prescott) commencing on the first Monday in January of each year. 

The District Courts in the several counties are held as fo. 

1. County of Pima, on the second Monday in March, ant 
second Monday in September. 

2. County of. Yuma, on the second Monday in March, and the 
second Monday in November. 

3. County of Yavapai, first Monday in June, and first Monday 
in November. 

4. County of Maricopa, on the first Monday in April, and sec- 
ond Monday in October. 

5. County of Mohave, on the first Monday in May, and first 
Monday in October. 

v 6 A . County of Pinal, on the second Monday in April, and the 
• "o d Monday^ in October. 

District Court is held at the county seat of each county. 

Probate Court is held at the county seat of each county, on the 
first Monday of January, April, July and October, in each year, and 
the Judge may hold such adjourned or special terms as he thinks 
proper. 

Justices' Courts are always open for the transaction of business. 



286 Arizona. [Part 9. 

CHAPTER III. 

COMMENCEMENT OF SUITS. 

Civil actions are commenced by filing a complaint with the Court 
or Justice. 

The defendant is required to answer the complaint in District- 
Court actions as follows : 

1. If the defendant is served within the county in which the ac- 
tion is brought, twenty days. 

2. If the defendant is served out of the county, but in the dis- 
trict in which the action is brought, thirty days. 

3. In all other cases, forty days. 

Where personal service cannot be had, by reason of the defendant 
being out of the Territory, or where he conceals himself to avoid 
service of process, service is made by publication, upon an order 
made by the Judge or Justice of the Peace. 

In District-Court actions the order shall direct the publication to 
be made in some newspaper to be designated as most likely to give 
notice to the defendant, the last of such insertions to be sixty days 
from the first ; the order prescribes the time for publication. In 
Justice-Court actions the publication shall be once a week for at 
least four weeks, and the Justice shall issue a new summons re- 
turnable in not less than sixty nor more than seventy days from its 
date. 

In Justice-Court actions the time mentioned in the summons for 
the appearance of the defendant and the time of service shall be as 
follows : 

1. When the summons is accompanied by an order to arrest the 
defendant, it shall be returnable immediately. 

2. When the defendant is not a resident of the county, it shall be 
returnable not more than two days from its date, and shall be served 
at least one day before the time for appearance. 

3. In all other cases it shall be returnable in not less than six nor 
more than ten days from its date, and shall be served at least four 
days before the time for appearance. 



Chap. 4.] Arizona. 287 

CHAPTER IV. 

PLACE OF TRIAL OF CIVIL ACTIONS. 

Actions for the following causes shall be tried in the county in 
which the subject of the action, or some part thereof, is situated : 

1. For the recovery of real property, or of an estate or interest 
therein, or for the determination in any form of such right or inter- 
est, and for injuries to real property. 

2. For the partition of real property. 

3. For the foreclosure of a mortgage of real property. 

Actions for the following causes shall be tried in the county where 
the cause, or some part thereof, arose : 

1. For the recovery of a penalty or forfeiture imposed by statute. 

2. Against a public officer. 

In other cases the action shall be tried in the county in which 
the parties, or some of them, reside, at the commencement of the 
action, or the defendant may be found ; or if none of the parties re- 
side in the Territory, the same may be tried in any county which 
the plaintiff may designate in his complaint. 

The Court may, on motion, change the place of trial: 

1. When the county designated in the complaint is not the proper 
county. 

2. When there is reason to believe that an impartial trial cannot 
be had therein. 

3. When the convenience of witnesses and the ends of justice 
would be promoted by the change. 

4. When from any case the Judge is disqualified from acting in 
the action. 

No person shall be held to answer to any summons issued against 
him from a Justices' Court in a civil action, in any precinct other 
than the one in which he or the plaintiff shall reside, except in the 
cases following : 



288 Arizona. [Part 9. 

1. When there shall be no Justices' Court for the precinct or vil- 
lage in which the defendant or plaintiff may reside, or no Justice 
competent to act in the case. 

2. When two or more persons shall be jointly or jointly and sev- 
erally bound in any debt or contract, or otherwise jointly liable in 
the same action, and reside in different precincts of the same county, 
or in different counties, the plaintiff may prosecute his action in a 
Justices' Court of the precinct or county in which any of the debt- 
ors or other persons liable may reside. 

3. In case of injury to the person, or to real and personal prop- 
erty, the plaintiff may prosecute his action in the precinct where the 
injury was committed, or where the defendant may be found. 

4. Where personal property, unjustly taken or detained, is 
claimed, or damages therefor are claimed, the plaintiff may bring his 
action in any precinct or county in which the property may be found, 
or in which the property was taken. 

5. When the defendant is a non-resident of the county, he may be 
sued in any precinct, village or city wherein he may be found. 

6. When a person has contracted to perform any obligation at a 
particular place, and resides in another, he may be sued in the pre- 
cinct in which such obligation is to be performed, or in which he 
resides. 

7. When the foreclosure of a mortgage, or the enforcement of a 
lien upon personal property, is sought by the action, the plaintiff 
may sue in the precinct, village or city where the property is situ- 
ated. 



Chap. 5.] Arizona. 289 

CHAPTER V. 

LIMITATION OF ACTIONS. 

The periods prescribed for the commencement of actions are as 
follows : 

Within five years — An action for the recovery of real property or 
the possession thereof ; an action upon a judgment or decree of any 
Court of the United States, or of any State or Territory within the 
United States. 

Within four years — An action upon any contract, obligation, or 
liability founded upon an instrument of writing. 

Within three years — An action for trespass upon real property ; 
an action for taking, detaining or injuring any goods or chattels, in- 
cluding actions for the specific recovery of personal property ; an 
action for relief on the ground of fraud, the cause of action in such 
case not to be deemed to have accrued until the discovery by the 
aggrieved party of the facts constituting the fraud. 

Within two years — An action upon a contract, obligation or lia- 
bility, not founded upon an instrument of writing ; also, an action 
against a Sheriff, Coroner, or Constable, upon the liability incurred 
by the doing of an act in his official capacity, and in virtue of his 
office, or by the omission of an official duty, including the non-pay- 
ment of money collected upon an execution ; an action on an open 
account for goods, wares and merchandise sold and delivered ; an 
action for any article charged in a store account. 

Within one year — An action for libel, slander, assault, battery, 
or false imprisonment ; an action against a Sheriff or other officer 
for the escape of a prisoner arrested on civil process. 

The statute begins to run from the time the cause of action 
accrued. 

Part payment does not prevent the statute running ; but in an 
action brought to recover a balance due upon a mutual open account, 
where there have been reciprocal demands between the parties, the 
cause of action shall be deemed to have accrued from the time of 
the last item proved in the account on either side. 



290 Arizona. [Part 9. 

An action upon a contract, obligation or liability for the payment 
of money, founded upon an instrument of writing, executed out of 
this Territory, can only be commenced as follows : 

First — Within one year, when more than two and less than five 
years have elapsed since the cause of action accrued. 

Second — Within six months, when more than five years have 
elapsed since the cause of action accrued. 

When the cause of action has arisen in another State, Territory, or 
foreign country, and is there outlawed, no action will lie in this 
Territory. If when the cause of action accrues against a person, he 
is out of the Territory, the action may be commenced within the 
term herein limited, after his return to the Territory ; and if after 
the cause of action accrues he departs from the Territory, the time of 
his absence shall not be part of the time limited for the commence- 
ment of the action. 



CHAPTER VI. 

ATTACHMENTS. 



The plaintiff at the time of issuing his summons, or any time after- 
ward, may have the property of the defendant attached as security 
for the satisfaction of any judgment that may be recovered, unless 
the defendant give security to pay such judgment as hereinafter 
provided in the following cases : 

1. In an action upon a contract, express or implied, for the direct 
payment of money, which contract was made, or is payable in this 
Territory, and is not secured by a mortgage, lien or pledge, upon 
real or personal property ; or if so secured, that such security has 
been rendered nugatory by the act of the defendant. 



Chap. 6.] ARIZONA. 291 

2. In an action upon a contract, express or implied, for the direct 
payment of money, against a defendant not residing in this 
Territory. 

The Clerk of the Court shall issue the writ of attachment upon 
receiving an affidavit by or on behalf of the plaintiff, which shall be 
filed, showing : 

1. That the defendant is indebted to the plaintiff (specifying the 
amount of such indebtedness, over and above all legal set-offs or 
counter-claims) upon a contract, expressed or implied, for the direct 
payment of money, and that such contract was made or is payable 
in this Territory, and that the payment of the same has not been se- 
cured by any mortgage, lien or pledge upon real or personal prop- 
erty ; or 

2. That the defendant is indebted to the plaintiff (specifying the 
amount of such indebtedness, as near as may be, over and above all 
legal set-offs or counter-claims), and that the defendant is a non- 
resident of this Territory ; and 

3. That the sum for which the attachment is asked is a bona fide 
existing debt, due, and owing from the defendant to the plaintiff, and 
that the attachment is not sought and the action is not prosecuted 
to hinder, delay or defraud any creditor or creditors of the defend- 
ant. 

A written undertaking is required on behalf of the plaintiff, 
in a sum not less than the amount claimed by the plaintiff, with 
sufficient sureties, to the effect that if the defendant recover judg- 
ment, or if the attachment shall be discharged on the ground that 
the writ was improperly issued, the plaintiff will pay all costs 
awarded the defendant, and all damages which he may sustain by 
reason of the attachment, not exceeding the amount specified in the 
undertaking. 



292 Arizona. [Part 9. 

CHAPTEE VII. 

ARREST IN CIVIL ACTIONS. 

The defendant may be arrested in the following cases : 

1. In an action for the recovery of money or damages, in a cause 
of action arising upon contract, express or implied, when the de- 
fendant is about to depart from the Territory with intent to defraud 
his creditors ; or when the action is for willful injury to person, to 
character, or to property known to belong to another. 

2. In an action for a fine or penalty, or for money or property 
embezzled, or fraudulently misapplied, or converted to his own use 
by a public officer, or an officer of a corporation, or an attorney, 
factor, broker, agent or clerk, in the course of his employment as 
such, or by any other person in a fiduciary capacity, or for miscon- 
duct or neglect in office, or in a professional employment, or for a 
willful violation of duty. 

3. In an action to recover the possession of personal property 
unjustly detained, when the property, or any part thereof, has been 
concealed, removed, or disposed of, so that it cannot be found or 
taken by the officer. 

4. When the defendant has been guilty of a fraud in contracting 
the debt or incurring the obligation for which the action is brought, 
or in concealing or disposing of the property, for the taking, deten- 
tion, or conversion of which the action is brought. 

5. When the defendant has removed or disposed of his property, 
or is about to do so, with intent to defraud his creditors. 

An affidavit is required on behalf of the plaintiff, setting forth 
the grounds of arrest, and also an undertaking with sufficient sure- 
ties, in an amount of at least five hundred dollars. 



Chap. 8 and 9.] Arizona. 293 

CHAPTEE VIII. 

JUDGMENTS AND JUDGMENT LIENS. 

A judgment is the final determination of the rights of the parties 
in an action or proceeding. 

Immediately upon the docketing of a judgment it becomes a lien 
upon all the real estate of the judgment debtor not exempt from ex- 
ecution in the county, owned by him at the time, or which he may 
afterward acquire, until the lien expires. The lien continues two 
years. A transcript of the original docket, certified by the Clerk, 
may be filed with the Recorder of any other county, and thereby 
constitute a lien upon the lands of the judgment debtor in such 
county. * 



CHAPTER IX. 

EXECUTIONS, EXEMPTIONS, SALE AND REDEMPTION. 

Execution may be issued at any time within five years after the 
entry of judgment. Until a levy is made, property is not affected 
by execution. 

The following property is exempt from execution : 

1. The homestead, consisting of a quantity of land, together with 

the dwelling-house thereon and its appurtenances, and the water 

rights and privileges pertaining thereto, sufficient to irrigate the 

land, not exceeding in value the sum of five thousand dollars, allowed 



294 Arizona. [Part 9. 

to the head of a family. The homestead may be set apart after exe- 
cution levied. 

2. All spinning-wheels, weaving-looms with the apparatus, and 
stoves put up and kept for use in any dwelling-house. 

3. A seat, pew, or slip occupied by such person or family in any 
house or place of public worship. 

4. All cemeteries, tombs, and rights of burial, while in use as re- 
positories of the dead. 

5. All arms and accoutrements kept for use ; all wearing apparel 
of every person or family. 

6. The library and school books of every individual and family, 
not exceeding one hundred and fifty dollars, and all family pic- 
tures. 

7. To each householder, ten goats or sheep, with their fleeces, and 
the yarn or cloth manufactured from the same ; two cows, five swine, 
and provisions and fuel for the comfortable subsistence of such house- 
hold and family for six months. 

8. To each householder, all household goods, furniture and uten- 
sils, not exceeding in value six hundred dollars. 

9. The tools, implements, materials, stock, apparatus, team, vehi- 
cle, horses, harness, or other things to enable any person to carry on 
the profession, trade, occupation or business in which he is wholly 
or principally engaged, not exceeding in value six hundred dollars. 

10. One sewing-machine and one musical instrument. 

11. A sufficient quantity of hay, grain, feed, and roots for prop- 
erly keeping the above-named animals for three months. 

An execution may be made returnable in not less than ten nor 
more than sixty days after its receipt by the Sheriff. 
Notice of sale must be given as follows : 

1. In 'case of perishable property, a reasonable time. 

2. In case of personal property, not less than five nor more than 
ten days. 

3. In case of real property, twenty days. 

Upon the sale of real property, when the estate is less than a 
freehold of two years unexpired term, the sale shall be absolute. 
In all other cases, the real property is subject to redemption within 
six months after the sale, upon paying to the purchaser the amount 
of the purchase, with eighteen per cent, in addition, and. all taxes 
or assessments paid by the purchaser. 



Chap. 10 and 11.] Arizona. 295 

CHAPTER X. 

PROCEEDINGS SUPPLEMENTARY TO EXECUTION. 

When an execution is returned unsatisfied in whole or in part, the 
judgment creditor, at any time after such return is made, is entitled 
to an order from the Judge of the Court, requiring such judgment 
debtor to appear and answer concerning his property before such 
Judge or a referee appointed. 



CHAPTER XL 

ESTATES OF DECEASED PERSONS. 

Immediately after the appointment of the executor or adminis- 
trator, he shall give notice through a newspaper published in the 
county, if there be one, and if not, then in such newspaper desig- 
nated by the Court, requiring all persons having claims against the 
deceased to present them, with the necessary vouchers, within ten 
months after publication of the notice. If a claim be not presented 
within the ten months, it shall be forever barred ; however, if it be 
not then due or is contingent, it may be presented within ten months 
after it shall become due or absolute ; and when it shall be made to 
appear by the affidavit of the claimant, to the satisfaction of the ex- 
ecutor or administrator, and the Probate Judge, that the claimant 
had no notice by reason of being out of the Territory, it may be 
presented at any time before a decree of distribution is entered. 



296 Arizona. [Part 9. 

Every claim presented to the executor or administrator shall be sup- 
ported by the affidavit of the claimant, that the amount is justly 
due, that no payments have been made thereon, and that there are 
no offsets to the same to the knowledge of the claimant or other 
affiant ; provided, that when the affidavit is made by any other per- 
son than the claimant, he shall set forth in the affidavit the reason it 
is not made by the claimant. 

The affidavit may be sworn to before any. officer authorized to take 
oaths. 

When a claim is presented and allowed by the executor or admin- 
istrator, it shall then be presented to the Probate Judge for his ap- 
proval, and within thirty days thereafter filed with the Probate 
Court. 

If a claim be founded upon a bond, note, or other instrument, the 
original instrument shall be presented. If the claim be secured by 
a mortgage or other lien, such mortgage or other evidence of liens 
shall be attached to the claim, and filed therewith, unless the same 
be recorded in the office of the Recorder of the county in which the 
land lies, in which case it shall be sufficient to describe the mortgage 
or lien, and refer to the date, volume and page of its record. In all 
cases the claimant may withdraw his claim from file on leaving a 
certified copy, with a receipt indorsed thereon by himself or 
agent. 

After a claim is rejected, suit must be brought thereon within 
three months, or it is forever barred ; if it be not then due, suit must 
be brought within three months from the time it falls due. An out- 
lawed claim must not be allowed. 

When a judgment has been rendered against the testator or intes- 
tate in his lifetime, no execution shall issue thereon after his death j 
but a certified copy of such judgment shall be presented to the ex- 
ecutor or administrator, and be allowed, and filed and rejected, as 
any other claim, but need not be supported by the affidavit of the 
claimant; and if justly due and unsatisfied, shall be paid in due 
course of administration ; provided, however, that if the execution 
shall have been actually levied upon any property of the deceased, 
the same may be sold for the satisfaction thereof, and the officer 
making the sale shall account to the executor or administrator for 
any surplus in his hands. The executor or administrator may, how- 



Chap. 12.] Arizona. 297 

ever, require the affidavit of the claimant, or other satisfactory proof, 
that the judgment, or any portion thereof, is justly due and unsatis- 
fied. . 



CHAPTER XII. 

AFFIDAVITS AND DEPOSITIONS. 

An affidavit taken in another State or Territory, to be used in this 
Territory, shall be taken before a Commissioner appointed by the 
Governor of this Territory to take affidavits and depositions in such 
State or Territory, or before any Judge, or Notary Public, or Clerk 
of a Court having a seal ; when taken before a Judge the genuine- 
ness of the Judge's signature, the existence of. the Court, and the 
fact that such Judge is a member thereof, shall be certified by the 
Clerk of the Court under the seal thereof. 

The deposition of a witness out of the Territory may be taken in 
an action at any time after the service of the summons or the ap- 
pearance of the defendant. It shall be taken under a commission 
issued from the Court under the seal of such Court. It shall be 
issued to a person agreed upon by the parties, or if they do not 
agree, to any Judge or Justice of the Peace selected by the officer 
granting the commission, or to a Commissioner appointed by the 
Governor of this Territory to take affidavits and depositions. The 
deposition must be returned in a sealed envelope, directed to the 
Clerk or other person designated or agreed upon, by mail or other 
usual channel of conveyance. 



298 Arizona. [Part 9. 

CHAPTER XIII. 

ACKNOWLEDGMENTS. 

The proof or acknowledgment of every conveyance affecting any 
real estate shall be taken by some one of the following officers : 

1. If acknowledged or proved within this Territory, by some 
Judge or Clerk of a Court having a seal, or some Notary Public or 
Justice of the Peace of the proper county. 

2. If acknowledged or proved without this Territory, and within 
the United States, by some Judge or Clerk of any Court of the 
United States, or of any State or Territory having a seal, or by any 
Commissioner appointed by the Governor of this Territory for that 
purpose. 

3. If acknowledged or proved without the United States, by some 
Judge or Clerk of any Court of any State, Kingdom, or Empire 
having a seal, or by any Notary Public therein, or by any Minister, 
Commissioner, or Consul of the United States appointed to reside 
therein. 

Every officer who shall take the proof or acknowledgment of any 
conveyance' affecting any real estate, shall grant a certificate thereof, 
and cause such certificate to be indorsed or annexed to such convey- 
ance. Such certificate shall be : 

1. When granted by any Judge or Clerk, under the hand of such 
Clerk or Judge. 

2. When granted by an officer, who has a seal of office, under the 
hand and official seal of such officer. 

The certificate of such acknowledgment shall state the fact of 
acknoAvleclgment, and that the person making the same was person- 
ally known to the officer granting the certificate to be the person 
whose name is subscribed to the conveyance as a party thereto, or 
was proved' to be such by the oath or affirmation of a credible wit- 
ness, whose name shall be inserted in the certificate. 

A married woman may convey her real estate, her husband joining 
in the conveyance, No acknowledgment to be made by a married 



Chap. 14.] Arizona. 299 

woman unless she be personally known to the officer taking the same 
to be the person whose name is subscribed to such conveyance as a 
party thereto, or shall be proved to be such by a credible witness ; 
nor unless such married woman shall be made acquainted with the 
contents of such conveyance, and shall acknowledge on an exam- 
ination, apart from and without the hearing of her husband, that 
she executed the same freely and voluntarily, without fear or com- 
pulsion, or undue influence of her husband, and that she does not 
wish to retract the execution of the same. 



CHAPTER XIV. 

MARRIED WOMEN. 

All property, both real and personal, of the wife, owned by her be- 
fore marriage, and that acquired afterward by gift, bequest, devise 
or descent, shall be her separate property, and is not subject to the 
debts of her husband. 

All property acquired after marriage, by either husband or wife, 
except such as may be acquired by gift, bequest, devise, or descent, 
shall be common property.' 

The separate property of the husband is not liable for the debts 
of the wife contracted before marriage, but the separate property of 
the wife shall be and continue liable for all such debts. 



300 Arizona. [Part 9. 

CHAPTER XV. 

CHATTEL MORTGAGES. 

Chattel mortgages may be made on the following property, viz : 

Upholstery and furniture used in hotels and public boarding- 
houses, when mortgaged to secure the purchase money of the iden- 
tical articles mortgaged, and not otherwise ; saw-mill, grist-mill, 
and steamboat machinery ; tools and machinery used by machinists, 
foundry men and other mechanics ; steam boilers, steam engines, 
locomotives, engines and the rolling stock of railroads ; printing 
presses and other printing material ; instruments and chests of a 
surgeon, physician or dentist ; libraries of all persons ; machinery 
and apparatus for mining purposes ; growing crops, grain in store or 
field ; teams and implements pertaining to farming ; stock of all 
kinds on farm. 

No chattel mortgage made shall have any legal force or effect, 
(except between the parties thereto) unless the residence of the 
mortgagor and mortgagee, their profession, trade or occupation, the 
sum to be secured, the rate of interest to be paid, when and where 
payable, shall be set out in the mortgage ; and the mortgagor and 
mortgagee shall make affidavit that the mortgage is bona fide, and 
without any design to defraud or delay creditors, which affidavit shall 
be attached to such mortgage. 

Mortgage not valid as to third parties, unless duly recorded, or 
unless the mortgagee receives and retains the actual possession of the 
property. 



Chap. 16.] Arizona. 301 

CHAPTER XVI. 

INTEREST. 

When there is no express agreement fixing a different rate of in- 
terest, interest shall be allowed at the rate of ten per cent, per 
annum, on all moneys after they become due on any bond, bill, prom- 
issory note, or other instrument of writing, or any judgment recov- 
ered before any Court in this Territory for money lent, for money 
due on the settlement of accounts from the day on which the balance 
is ascertained, and for money received for the use of another. 

Parties may agree, in writing, for the payment of any rate of in- 
terest whatever on money due or to become due on any contract ; 
any judgment rendered on such contract shall conform thereto, and 
shall bear the interest agreed upon by the parties, and which shall 
be specified in the judgment. 

Parties may agree, in writing, to compound interest. 



302 Arizona. [Part 9. 



CHAPTER XVII. 



BILLS OF EXCHANGE. 



Three days' grace allowed on notes and bills, except sight drafts. 

The rate of damages to be allowed and paid upon the usual pro- 
test for the non-payment of bills of exchange, drawn or negotiated 
within this Territory, shall be as follows : 

1. If such bill shall have been drawn upon any person or persons 
in any of the United States or Territories east of the Rocky Moun- 
tains, fifteen dollars upon the hundred upon the principal sum speci- 
fied in such bill. 

2. If such bill shall have been drawn on any person or persons in 
any port or place in Europe or any foreign country, twenty dollars 
upon the hundred upon the principal sum specified in such bill. 

Such damages shall be in lieu of interest, charges of protest, and 
all other charges incurred previous to and at the time of giving no- 
tice of non-payment ; but the holder of such bill shall be entitled to 
demand and recover lawful interest upon the aggregate amount of 
the principal sum specified in such bill and of the damages thereon, 
from the time notice of protest for non-payment shall have been given, 
and payment of such principal sum shall have been demanded. 

All notes in writing made and signed by any person whereby he 
shall promise to pay to any other person, or to his own order, or to 
the order of any other person, or unto the bearer any sum of money 
therein expressed, shall be due and payable as therein expressed, 
and shall have the same effect and be negotiable in like manner as 
inland bills of exchange, according to the customs of merchants. 

No person in this Territory shall be charged as an acceptor on a 
bill of exchange unless his acceptance shall be in writing signed by 
himself or his lawful agent. 



Chap. 18.] Arizona. 303 

Every holder of a bill presenting the same for acceptance, may re- 
quire that the acceptance be written on the bill ; a refusal to com- 
ply with such request shall be deemed a refusal to accept, and the 
bill may be protested for non-acceptance. 



CHAPTER XVIII, 

INSOLVENCY. 

There is no insolvency law in this Territory. 



PART X. 



UTAH TERRITORY. 



PREPARED EXPRESSLY FOR THIS WORK BY MARSHALL & ROYLE, 
SALT LAKE CITY: 



CHAPTER I. 

THE COURTS AND THEIR JURISDICTION. 

The Supreme Court of the Territory has general appellate juris- 
diction only. 

There are three United States District Courts in the Territory, 
with unlimited jurisdiction in all chancery and law actions. 

The Probate Courts, 

One in each county : Their jurisdiction is limited to strictly probate 
business, except that they may try divorce cases where both parties 
agree upon that forum ; removable, however, at the pleasure of 
either party, to the District Court. The Judges have the right to 
enter town sites, and preside over the Board of Selectmen ; in other 
words, the County Court. 

Justices' Courts 

Have jurisdiction in all actions where the amount involved is less 
than three hundred dollars, except in cases involving titles to real 
estate. 



306 UTAH. [Part 10. 



CHAPTER II. 



THE TERMS OF COURTS AND PLACES OF HOLDING 

SAME. 

The Supreme Court sits the first Monday of January, and the 
second Monday of June, of each year, at Salt Lake City. 

The District Courts sit as follows : 1st District, comprising the 
Counties of Millard, Sevier, San Pete, Juab, Utah, "Wasatch and 
Morgan, Weber, Box Elder, Cache and Rich Counties, and is held 
at Provo, Utah County, and at Ogden, Weber County. 

Second District, comprising the Counties of Kane, Washington, 
Piute, Iron and Beaver, is held at Beaver City, Beaver County, on 
first Mondays in March, May, September and December. 

Third District, comprising the Counties of Salt Lake, Tooele, 
Summit and Davis, is held in the City and County of Salt Lake, on 
the second Monday in April, fourth Thursday in September, second 
Monday in November, and first Monday in February. 

The Probate Courts and Justices' Courts are always open for the 
transaction of business ; the former at their respective County 
Court Houses, and the latter in their respective precincts. 



Chap. 3 and 4.] utah. 30? 



CHAPTER III. 

COMMENCEMENT OF SUITS AND TIME ALLOWED DE- 
FENDANTS TO PLEAD. 

Suits may be commenced at any time. Ten days after service are 
x. allowed the defendants to plead, answer, demur, or file motions in 
cases in the District Courts and Supreme Court. 

In Justices' Courts, defendants may be required to answer within 
two days after service, and not longer than ten days after service. 



CHAPTER IV. 

LIMITATIONS OF ACTIONS. 

Actions for the recovery of real estate can only be brought within 
seven years after the plaintiffs having been lawfully seized and 
possessed of the premises by himself, grantor, ancestor, or prede- 
cessor. 

Actions for the recovery of money on notes or written obligations 
must be brought within four years after the cause of action accrued ; 
on accounts, within two years ; and on a judgment of a Court of 
record, five years. 



308 UTAH. [Part 10. 

CHAPTER V. 

ATTACHMENTS 

Can only issue upon the filing of an affidavit on behalf of the 
plaintiff, showing the existence of a debt upon contract, specifying 
the nature and amount thereof, as near as may be, over and above 
all legal set-offs or counter-claims ; that the same has not been secured 
by any mortgage, lien, or pledge upon real or personal estate within 
the Territory, or if so secured, that such security has been rendered 
nugatory by the act of the defendant ; that the defendant is not re- 
siding in this Territory, or that the defendant has departed the Ter- 
ritory or county where the action is brought, or that the defendant 
stands in defiance of an officer, or conceals himself so that process 
cannot be served upon him, or that he is disposing of his property 
with the intent to defraud his creditors ; that the debt is an actual 
bona fide existing demand due and owing from the defendant to the 
plaintiff, and that the action is not sought or prosecuted to hinder, 
delay, or defraud any creditor of the defendant. 

There must also be executed and filed an undertaking, with two 
sufficient securities, in a sum not less than $200, nor exceeding the 
amount claimed by the plaintiff, conditioned, that if the defendant 
recover judgment in the action, the plaintiff will pay all costs that 
may be awarded to the defendant, not exceeding the amount speci- 
fied in the undertakino-. 



Chap. 6.] utah: 309 

CHAPTER VI. 

ARRESTS IN CIVIL ACTIONS 

Are issued upon filing an undertaking and affidavit, the same in 
effect as those required in attachment cases, except that in addition 
to the liability of sureties in attachment cases for costs, in cases of 
arrest they are liable for any damage which the defendant may sus- 
tain by reason of the arrest, not exceeding the sum specified in the 
undertaking, and the undertaking must be in a sum not less than 
$500. In either case, the sureties must annex an affidavit to the un- 
dertaking ; that he is a resident and householder, or freeholder within 
the Territory, and worth double the sum specified in the undertaking, 
over and above all his debts and liabilities, exclusive of property ex- 
empt from execution. 

The affidavit in cases of arrest differs from attachment affidavits 
only in this, that the arrest* may be made in any action for a fine, 
or for money or property embezzled, or fraudulently misapplied, or 
converted to his own use by a public officer, or an officer of a cor- 
poration, or an attorney, factor, or broker, agent or clerk, in the 
course of his employment, or by any person in a fiduciary capacity 
for misconduct or neglect in office, or in a professional employment, 
or for a willful violation of duty, or in an action to recover the pos- 
session of personal property, unjustly detained ; when the property, 
or any part thereof, has been concealed, removed or disposed of, so 
that it cannot be found or taken by the Territorial Marshal, his 
deputy, or the Sheriff or his deputy ; or where the defendant has 
been guilty of fraud in contracting the debt or incurring the obliga- 
tion for which the action is brought, or is concealing or disposing of 
the property for the taking, detention or conversion of which the 
action is brought ; or when the defendant has removed or disposed 
of his property, or is about to do so, with the intent to defraud his 
creditors. 



310 UTAH. [Part 10. 



CHAPTER VII. 

JUDGMENTS AND JUDGMENT LIENS. 

A judgment is collectible by execution, and is a lien upon the 
real estate of the defendant within the county where it is rendered, 
from its rendition ; executions may be issued to other counties, but 
the judgment constitutes a lien there, only from the time of filing 
a transcript of the judgment for record in the office of the County 
Recorder of the county to which it is sent. 



CHAPTER VIII. 

EXECUTIONS, EXEMPTIONS, SALES AND REDEMP- 
TION. 

Property, real or personal, may be sold on twenty days' notice, 
under execution, but the execution may issue returnable in not less 
than ten days nor more than ninety days, and the execution may re- 
quire the officer to satisfy the judgment in the particular kind of 
money ordered in the judgment. 

The following property is exempt from execution : 

1. Chairs, tables, desks and books, to the value of one hundred 
dollars, belonging to the judgment debtor. 

2. Necessary household, table and kitchen furniture belonging to 
the judgment debtor, including stoves, not to exceed one stove for 



Chap. 8.] utah. 311 

every five persons of the family. Stovepipe and stove furniture, 
wearing apparel, one bedstead, one bed, and the necessary bedding 
for every two persons in the family, and provisions and fuel for the 
family sufficient for sixty days. 

3. The farming utensils or implements of husbandry of the judg- 
ment debtor. Also, two oxen or two horses, or two mules and their 
harness ; one cow and calf for every five persons in the family ; one 
cart or wagon, and food for such oxen, horses, cows or mules for sixty 
days; also all seed grain, or vegetables, actually provided, reserved, 
or on hand, for the purpose of planting or sowing at any time 
within the ensuing six months, not exceeding in value one hundred 
dollars. 

4. The tools, tool chest and implements of a mechanic or artisan 
necessary to carry on his trade. The instruments and chests of a 
surgeon, physician, surveyor or dentist, necessary to the exercise of 
their professions, with their scientific and professional libraries, and 
the law library of an attorney or counselor, and the libraries of 
ministers of the gospel. 

5. The tent or cabin of a miner, including a table, camp stools, a 
bed and bedding, and necessary Cools used in mining, not exceeding 
the value of four hundred dollars, with provisions necessary to his 
support for thirty days. 

6. Two oxen, or two horses, or two mules and their harness, and 
one cart and wagon, by the use of which a cartman, teamster or 
other laborer habitually earns his living, and food for such oxen, 
horses or mules for sixty days ; and a horse, harness and vehicle 
used by a physician, surgeon, or minister of the gospel, in making 
his professional visits. 

7. One sewing machine, not to exceed in value $100.00, in actual 
use by the debtor or his family. If the debtor be head of a family, 
then there shall be a further exemption of five head of sheep and 
the wool therefrom for every person in the family, two hogs and 
three pigs under three months old, and the necessary food for all 
such animals for sixty days. All flax raised by the debtor and the 
manufactures therefrom, and all cloth manufactured in the family 
of the debtor for their own use ; all spinning wheels and looms and 
and other instruments of domestic labor kept for family use. The 
earnings of such debtor for his personal service, or those of his fam- 
ily, at any time within sixty days next preceding the levy. 



312 utah. [Part 10. 

8. All fire engines, hooks and ladders, with the carts, trucks and 
carriages, hose, buckets, implements and apparatus. All furniture 
and uniforms of any fire company or department now existing, 
or which may be under the laws of this Territory hereafter organ- 
ized. 

9. All arms, ammunition, uniforms and accoutrements, required 
by law to be kept by a person. 

10. All Court Houses, jails, public offices and buildings, school 
houses, and houses of public worship, lots, grounds and personal prop- 
erty appertaining thereto. The fixtures, furniture, bdbks, papers and 
appurtenances belonging and appertaining to the Court House, jail, 
and public offices belonging to any county, or for the use of schools 
or houses of public worship ; and all cemeteries, public squares, 
parks and places, town halls, markets for the use of fire departments 
and military organizations, and the lots and grounds thereto belong- 
ing, or held by any town or incorporated city, or dedicated to such 
town or city to health, ornament, or public use, to the use of any fire 
or military company now existing or hereafter organized. 

11. For homestead exemption, see " Homestead. " 

Redemption 

Of real property may be made by the defendant, or any creditor 
subsequent to plaintiff's lien, at any time within six months from 
the day of sale, by the payment of the purchase money and six per 
cent, bonus, 



Chap. 9.] utah. 313 

CHAPTER IX. 

PROCEEDINGS IN AID OF EXECUTIONS. 



On the return by a Sheriff or Marshal of an execution " unsatis- 
fied," the judgment creditor upon affidavit or otherwise showing to 
the satisfaction of the Court, or of the Judge thereof, that the judg- 
ment debtor has property which he unjustly refuses to apply toward 
the satisfaction of the judgment, may apply, and the Court or Judge 
may, by an order, require the judgment debtor to appear at a speci- 
fied time and place before such Judge, or a referee appointed by 
him, to answer under oath concerning the same ; and such proceed- 
ings may thereupon be had for the application of the property of 
the judgment debtor toward the satisfaction of the judgment, as are 
provided upon the return of an execution ; that is, to require the ap- 
pearance of witnesses, and hear the* same, and make orders in rela- 
tion thereto. And on proof by affidavit, or otherwise, that any per- 
son or corporation has property of such judgment debtor, or is in- 
debted to him in an amount exceeding $50, the Judge may by order 
require such person, or corporation, or any officer or member thereof, 
to appear at a specified time and place before him, or a referee ap- 
pointed by him, and answer concerning the same. 

The Judge or referee may order any property of the judgment 
debtor not exempt from execution in the hands of such debtor, or 
any other person, or due to the judgment debtor, to be applied to- 
ward the satisfaction of the judgment. 

If it appear that a person or corporation, alleged to have property 
of the judgment debtor or indebted to him, claims an interest in 
the property adverse to him, or denies the debt, the Court or Judge 
may authorize, by an order made to that effect, the judgment cred- 
itor to institute an action against such person or corporation for the 
recovery of such interest or debt ; and the Court or Judge may, by 
order, forbid a transfer or other disposition of such interest or debt, 
until an action can be commenced and prosecuted to judgment. 



314 utah. [Part 10. 

Such order may be modified or vacated by the Judge granting the 
same, or the Court in which the action is brought, at any time, on 
such terms as may be just. 



CHAPTER X. 

SECURITY FOR COSTS. 

It is made the duty of the Clerk of the District Court, in all civil 
actions, to require the party commencing the suit to pay in advance, 
or secure by bond, with security, the payment of the probable amount 
of the costs of the action, provided that the said costs shall at the 
conclusion of the trial be paid by the party against whom said costs 
are adjudged by the Court. 



Chap. 11.] Utah. 315 

CHAPTER XI. 

APPEALS 

From Justices' Courts to the proper District Court may be taken 
any time within thirty days after rendition of judgment, except 
where the judgment is for an amount less than $20, by filing a notice 
of such appeal, and serving a copy on the opposite party ; and by 
filing with the Justice, within five days after filing the notice of ap- 
peal, an undertaking with two good sureties, who shall justify under 
oath. 

Appeals from the District Court 

May be taken to the Supreme Court from any final judgment or 
order in a civil action, except when expressly made final by the act, 
any time within one year after the ^rendition of judgment. From 
any order granting or refusing a new trial,, or from an order grant- 
ing or dissolving an injunction, or from an order refusing to grant 
or dissolve an injunction, and from any special order made after the 
final judgment, within sixty days after the order is made and en- 
tered upon the minutes of the Court ; or from any interlocutory judg- 
ment or order in cases of partition, sale or division, to be taken 
within sixty days after the rendition'of the same. 

The appeal is taken by filing with the Clerk of the Court with 
whom the judgment or order appealed from is entered, a notice stat- 
ing the appeal from the same, or some specific part thereof, and serv- 
ing a copy of the notice on the adverse party or his attorney. To 
render the appeal effectual for any purpose, in any case, a written 
undertaking shall be executed on the part of the appellant, by at 
least two sureties, to the effect that the appellant will pay all dam- 
ages and costs which may be awarded against him on the appeal ; or 
a sum not exceeding $100 shall be deposited with the Clerk with 
whom the judgment or order was entered, to abide the event of the 
appeal ; such undertaking shall be filed, or such deposit made with 
the clerk, within at least five days after the notice of appeal is filed. 



316 utah. [Part 10. 

An appeal from a judgment or order for the payment of money- 
shall not stay the execution of the judgment or order, unless a writ- 
ten undertaking is executed on the part of the appellant, by two or 
more sureties, stating their places of residence and occupation, to 
the effect that they are bound in double the amount named in the 
judgment or order appealed from ; and should the judgment or order 
appealed from, or any part thereof, be affirmed, the appellant shall 
pay the amount directed to be paid by the judgment or order, or the 
part thereof which shall be affirmed, and all damages and costs which 
may be awarded against the appellant, and in the kind of money in 
which the Court to which it is appealed shall order the payment 
thereof. 

The sureties shall file affidavits as to their worth, over all just 
debts and liabilities, exclusive of property exempt from execution. 

When the appeal shall be thus perfected, it shall stay all proceed- 
ings upon the judgment, until the action of the appellate Court shall 
be had. The appellee may object to the sureties, as to their suffi- 
ciency, and if the objection be well taken, and the appellant, upon 
five clays' notice, fail to give additional security, the appeal shall be 
regarded as if not taken. 

Upon trial in the appellate Court, the successful party is entitled 
to have the judgment remitted to the Court from which the appeal 
was taken for execution. 



Chap. 12.] utah. 317 

CHAPTER XII. 

ESTATES OF DECEASED PERSONS. 

Claims against deceased estates must be made within two years 
after administration begins. 

Satisfactory proof of the amount due must be made to the Pro- 
bate Court ; this may be made after expiration of two years, pro- 
vided notice of the claim be given within the two years. 

The executor or administrator of the estate has as long to make 
final settlement in as the Probate Court will permit, which is usually 
as long as he can show any unsettled business of the estate. 

The widow or other members of the family are entitled to the 
homestead, and such further allowances as the Probate Court may 
deem proper for the maintenance of the widow. 

The largest discretion is given the Court in making orders respect- 
ing the estate. 



318 utah. [Part 10. 



CHAPTER XIII. 



HOMESTEADS. 



There shall be allowed homestead exemption, to be selected by 
the debtor, consisting of lands and appurtenances thereon not ex- 
ceeding in value one thousand dollars for the judgment debtor, and 
the further sum of two hundred and fifty dollars for each member of 
the family, (which, in some instances, amount to thirty or forty, in- 
cluding wives and children.) If the premises amount in value to 
more than the homestead exemption, it may be ordered sold or par- 
titioned, and in case of sale, the excess over the exemption valuation 
is subject to execution ; and in case of partition, the part divided 
off from the homestead is subject to sale on execution, the valuation 
to be made by persons chosen by the debtor and the officers having 
the execution. 



Chap. 14.] Utah. 319 

CHAPTER XIV. 

DEPOSITIONS 

May be taken in any action at any time after service of summons, 
or the appearance of the defendant, and in a special proceeding after 
a question of fact has arisen therein, in the following cases : 

1. When the witness is a party to the action or proceeding, or 
a person for whose immediate benefit the action or proceeding is 
prosecuted or defended. 

2. When the witness resides out of the county in which his testi- 
mony is to be used. 

3. When the witness is about to leave the county where the ac- 
tion is to be tried, and will probably continue absent when his tes- 
timony is required. 

4. When the witness, otherwise liable to attend the trial, is too 
infirm to attend, or resides within the county but more than fifty 
miles from the place of trial. 

Either party may have a deposition of a witness taken before a 
Notary Public, Justice of the Peace, Judge, or Clerk of a Court, by 
serving notice on the adverse party of the time and place of the ex- 
amination, together with a copy of the affidavit showing the case to 
be one of the kind above mentioned. The notice must be served at 
least five days, and one additional day for every twenty-five miles of 
distance of the place of examination from the residence of the per- 
son served, unless for cause the Court prescribes a shorter time. 

The witness may be cross-examined, and after having his testi- 
mony carefully examined and read to him, he shall sign it ; and the 
officer taking the deposition shall certify it up to the proper Court, 
inclosed in an envelope, and addressed to the Clerk of the Court in 
which the action is pending, or to such person as the parties may 
agree upon, or transmit through the mail ; and such deposition may 
be used by either party on the trial. No objections to the form of 
an interrogatory at the trial will be heard, unless made at the time 
of taking, if the party making the objection is in attendance at the 
taking. 



320 utah. [Part 10. 

If a deposition be taken on account of the absence from the 
county, or intended absence, or because the witness is too infirm to 
attend, before being used proof must be made by affidavit or oral 
testimony that the witness' disability continues, to the best of 
affiant's knowledge. The deposition may be read in case of his 
death. 

Depositions once taken may be read in any stage of the cause 
by either party, and shall be deemed evidence of the party reading 
them. 

If a deposition be taken out of the Territory, it must be upon a 
commission issued by the Court, under its seal, upon five days' notice 
to the adverse party of the application for a commission, and shall 
be issued to a person to be agreed upon between the parties ; and in 
case of disagreement, then to such person as the Court may appoint, 
or to a Commissioner appointed by the Governor of this Territory 
to take affidavits and depositions in the States or Territories. 

Such interrogatories, direct and cross, as the parties prepare, or, 
in case of disagreement, such as the Court shall settle, shall be an- 
nexed to the commission. The cause shall not be continued on ac- 
count of the non-return of the commission and deposition, unless 
upon evidence satisfactory to the Court, that the testimony of the 
witness is necessary, and that proper diligence has been used to ob- 
tain it. 

The statute also provides for the taking of testimony, and for its 
perpetuation, upon application to the Court, showing that the appli- 
cant expects to be a party to an action in this Territory, and giving 
the names of persons whom he expects will be adverse parties ; that 
the proof of some facts is necessary to perfect the title to property 
in which he is interested, or to establish a marriage, descent, heir- 
ship, or any other matter which it may hereafter become material to 
establish, though no suit may at the time be anticipated. The names 
of the witnesses and the general outline of the facts expected to be 
proven, to be stated. Affidavits or other proofs filed with the testi- 
mony shall be prima facie evidence of the facts stated therein. No 
particular form of the certificate of the officer taking the deposition 
is prescribed by the statute. 



Chap. 15.] UTAH. 321 

CHAPTER XV. 

JUDICIAL RECORDS, HOW PROVEN. 

A j udicial record of this Territory, or of the United States, or of 
any State or Territory of the United States, may be admitted in the 
Courts of this Territory by the attestation of the Clerk, with the 
seal of the Court annexed, together with the certificate of the Judge, 
chief Justice, or presiding Magistrate, as the case may be, that said 
attestation is in due form. 

A judicial record of a foreign country may be proved by the pro- 
duction of a copy thereof, certified by the Clerk, with the seal of the 
Court annexed, if there be a Clerk and seal, to be a true copy of 
such record, together with a certificate of the Judge of the Court, 
that the person making the certificate is the Clerk of the Court, or 
the legal keeper of the records; and in either case, that the signa- 
ture is genuine, and the certificate in due form ; together with the 
certificate of the Minister or Embassador of the United States, or of 
a Consul of the United States, in such foreign country, that there is 
such a Court, specifying generally its jurisdiction, and verifying the 
signature of the Judge and Clerk, or other legal keeper of the 
record. 

A copy of the judicial record of a foreign country shall also be 
admissible in evidence, upon proof, first, that the copy offered has 
been compared by the witness with the original, and is an exact 
transcript of the whole of it ; and that such original was in the cus- 
tody of the Clerk' of the Court, or other legal keeper of the same ; 
and that the copy is duly attested by the seal which is proved to be 
the seal of the Court where the record remains, if it be the record of 
a Court ; or if there be no such seal, or if it be not a record^ of a 
Court, by the signature of the legal keeper of the original. 



322 Utah. [Part 10. 

CHAPTEE XVI. 

ACKNOWLEDGMENTS. 



Deeds, mortgages, powers of attorney, or other instruments affect- 
ing the title to real estate, must be acknowledged or proved and 
witnessed by one or more witnesses before they can legally be placed 
upon record. 

The following is the form of the acknowledgment certificate : 

State or Territory of 

ss. 



County, 



On this day of A. d. 187 — , personally appeared 

before me , a Notary Public in and for said county, , 

who is personally known to me to be the person described in and 
who executed the foregoing instrument, who acknowledged to me 
that he executed the same freely and voluntarily, and for the uses 
and purposes therein mentioned. In witness whereof, I have here- 
unto set my hand and official seal, on the day and year last above 

written. , 

[seal.] Notary Public. 

The following officers are authorized to take acknowledgments, 
and certify to them : 

If acknowledged or proven within this Territory, by some Judge 
or Clerk of a Court having a seal, or some Notary Public, or County 
Recorder, or by a Justice of the Peace of the county where the con- 
veyance is executed, and to be recorded. 

If acknowledged or proved out of the Territory, and within any 
State or Territory in the United States, by some Judge or Clerk of 
any Court of the United States, or of any State or Territory having 
a seal, or by a Notary Public, or by a Commissioner appointed by 
the Governor of this Territory for that purpose. 

If acknowledged or proved without the United States, by some 
Judge or Clerk of any Court of any State, Kingdom, or Empire hav- 



Chap. 17.] utah. 323 

ing a seal, any Notary Public therein, or any Minister, Commissioner, 
or Consul of the United States appointed to reside therein. Such 
officers may take and certify such proofs or acknowledgments by 
their respective deputies, in the names of their principals. 

When granted by a Judge or Clerk, the certificate shall be under 
the seal of his Court. 

When granted by an officer who has an official seal, it shall be 
under such seal. 

By a Justice of the Peace, under his hand. 



CHAPTER XVII. 

PARTNERSHIPS. 

The statute provides how partners may be summoned, and how 
judgments against partners may be rendered, but is thus brief and 
pointed. 

When two or more persons, associated in any business, transact such 
business in a common name, whether it comprises the names of such 
persons or not, the associates may be sued by such common name, 
the summons in such cases being served on one or more of the asso- 
ciates, but the judgment in such cases shall bind only the joint prop- 
erty of the associates. The private property of persons engaged in 
copartnership shall be held liable for the debts of the firm, only 
when the partnership property shall prove insufficient to pay them. 
The assignment of a partner in trade to satisfy a creditor of the firm 
shall be deemed valid in law, but is not to be construed to authorize 
the assignment of partnership effects to satisfy individual claims of 
any of the parties. 



324 Utah. [Part 10. 

CHAPTER XVIII. 

MARRIED WOMEN. 

All property owned by either spouse before marriage, and that 
acquired after marriage by gift, bequest, devise, or descent, is the 
separate property of that spouse by whom the same is owned or ac- 
quired ; and as such, may be held, owned and controlled, and trans- 
ferred and disposed of by the spouse so owning or acquiring it, 
without any limitation or restriction by reason of marriage. 

Either spouse may sue and be sued in law. No right of dower 
shall be allowed. 



CHAPTER XIX. 

CORPORATIONS. 

Any number of persons, not less than six, one-third of whom 
being residents of the Territory, may incorporate for purposes of 
manufacturing, mining, or conducting any commercial or other in- 
dustrial pursuits, or for constructing roads, ditches, colonization and 
improvements for lands, colleges, seminaries, churches, libraries, or 
any benevolent, charitable, christian or scientific associations, or for 
any rightful subject consistent with the Constitution of the United 
States, and the laws of the Territory. 

Stock may be subscribed and paid up in property. No indi- 
vidual liability upon stockholders. The Probate Judge is the 
officiating officer in effecting an incorporation. 



Chap. 20.] utah. 325 

Foreign corporations must file copies of their articles of incor- 
poration with the Probate Judge of the county, when their princi- 
pal place of business is located in this Territory, and must designate 
an agent on whom process may be served. 



CHAPTER XX. 

CHATTEL MORTGAGES. 

We have no statute defining what property is the subject of chat- 
tel mortgage, but an action for the recovery of debts secured by a 
mortgage on either real or personal property, or both, is provided for 
by statute, giving power to the Courts to render judgment and make 
decree of foreclosure and order of sale of the mortgaged property, 
in satisfaction of the debt, and providing for an ordinary judgment 
lien and execution for unpaid balance, after sale of the mortgaged 
property. 

Chattel mortgages are void as to creditors or innocent purchasers, 
where the possession of the mortgaged property remains in the 
mortgagor, though good as between mortgagee and mortgagor. 



326 utah. [Part 10. 

CHAPTER XXI. 

INTEREST AND USURY. 



Ten per cent, per annum interest is allowed on debts due, where 
no contract as to interest exists. There is no usury statute, and 
parties are at liberty to contract for rates of interest without limit, 
and any agreed rate is collectible. 



CHAPTER XXII. 

INSOLVENCY. 

There is no insolvency law in this Territory. 



PART XL 



WASHINGTON TERRITORY. 



PREPARED EXPRESSLY FOR THIS WORK BY GEO. T. THOMP- 
SON, WALLA WALLA. 



CHAPTER I. 

COURTS AND THEIR JURISDICTION. 

The Territory is divided into three judicial districts, each having 
a Judge, who together compose the Supreme Court. 

The Supreme Court has appellate jurisdiction only, and causes are 
removed to it from the District Courts by writs of error or appeals. 

The several District Courts have general common law and 
chancery jurisdiction, in all matters where the amount in contro- 
versy exceeds one hundred dollars. They have also general jurisdic- 
tion in causes arising under the laws of the United States, and in 
admiralty and bankruptcy. 

There is a Probate Court in each county, holding six terms each 
per annum, having statutory jurisdiction in all matters pertaining 
to decedent's estates, and the guardianship and estates of minors 
and insane persons. They have no common law jurisdiction except 



328 Washington. [Part 11. 

such as is strictly necessary to carry out and enforce that denned 
by statute. 

Justices of the Peace have jurisdiction coextensive with the limits 
of their respective counties, over all causes arising on contract for 
the recovery of money only, when the sum claimed does not exceed 
one hundred dollars, and in actions for damages for injury to person 
or property, or for taking or detaining or injuring personal property, 
if the damages claimed do not exceed one hundred dollars ; also in 
actions to recover the possession of personal property where the value 
does not amount to one hundred dollars ; also in actions on under- 
takings or bonds, when the penalty or amount claimed does not ex- 
ceed one hundred dollars ; also in actions for the foreclosure of mort- 
gages, or the enforcement of liens on personal property, when the 
debt secured does not exceed one hundred dollars ; also in actions 
for damages for fraud and deceit in the sale, purchase or exchange 
of personal property, when the damages claimed do not exceed one 
hundred dollars ; also in actions of forcible entry and detainer ; also 
in actions to try the right of possession to mining claims. They may 
also take and enter judgment on the confession of a defendant, or 
upon default for a failure to appear or answer. 



Chap. 2.] Washington. 329 

CHAPTER II. 

TERMS OF COURTS— WHEN AND WHERE HELD. 



The Supreme Court holds one term in each year, at Olympia, com- 
mencing on the second Monday of. July. 

The District Court of the First Judicial District, Hon. S. C. Win- 
gard, Judge, is held for the county of Walla Walla at Walla Walla 
City, on the first Monday of May and second Monday of November ; 
for the county of Yakima, at Yakima City, on the first Monday of 
October of each year ; for the county of Whitman, at Colfax, on the 
first Monday of June and second Monday of December of each year ; 
for the county of Columbia, at Dayton, on the third Monday of 
June and second Monday of January ; for Stevens county, at Fort 
Colville, on the second Monday of August. 

The District Court of the Second Judicial District, Hon. R. S. 
Green, Judge, is held for the counties of Klikitat, Skamania and 
Clark, at Vancouver, on the Third Monday of March and third 
Monday of October of each year ; for the counties of Cowlitz and 
Wahkiakum, at Kalama, on the first Monday in January and the 
fourth Monday in June ; for the counties of Thurston, Lewis, Mason 
and Chehalis, at Olympia, on the first Monday in April and first 
Monday in December ; for the county of Pacific, at Oysterville, on 
the second Monday of August. 

The District Court of the Third Judicial District, Hon. J. R. 
Lewis, C. J., Judge, is held for the County of Pierce, at Steilacoom, 
on the second Monday of January and first Monday of August ; for 
the counties of King and Kitsap, at Seattle, on the fourth Monday 
of January and third Monday of August ; for the counties of Jef- 
ferson, Island, San Juan and Clallam, at Port Townsend, on the 
fourth Monday of February and fourth Monday of September. The 
District Court for Whatcom County is held at La Connor on the 
first Tuesday of June and first Tuesday of December. 

In addition to the above terms of Court, prescribed by Act of the 
Legislative Assembly, power is given to the Judges of each District 



330 Washington. [Part 11. 

to appoint, by rule from time to time, two special terms in each year, 
at which to transact all business, except trials by jury and the hear- 
ing causes on their merits. 

Terms of the Probate Courts are held at the county seat of each 
county on the fourth Mondays of January, March, May, July, Sep- 
tember and November of each year. 

Justices' Courts, are always open for the transaction of business. 



CHAPTEK III. 

COMMENCEMENT OF SUITS— TIME ALLOWED TO 
ANSWER 

Actions in the District Courts are commenced by filing the com- 
plaint with the Clerk and the issuing a summons thereon at any 
time within one year of such filing. The defendant is required to 
answer the complaint as follows : If served within the county where 
the action is brought, twenty days ; if served out of the county but 
in the district in which the action is brought, thirty days ; if served 
in any other district, forty days ; if served by publication, within 
sixty days from the date of the summons. 

If the defendant fails to appear and answer according to the re- 
quirements of the summons, the plaintiff is entitled to have the de- 
fault entered and judgment for the amount specified in the summons, 
or for the relief prayed for in the complaint. The complaint and 
all subsequent proceedings in an action, except a demurrer, must be 
verified by the party (his agent or attorney, in the county where the 
action is brought), to the effect that he believes it to be true. All 
common-law forms of pleadings, and all distinctions between law and 
equity as to form are abolished, and the code system adopted. 



Chap. 4.] WASHINGTON. 331 

In Probate Court, most of the business can be commenced, pre- 
liminary orders granted, and writs issued by the Judge in vacation. 
Orders or decrees for the sale of real estate, the settlement of es- 
tates, and discharge of executors, administrators, or guardians, and 
final orders and decrees generally, must be heard and decided in term 
time. 

Actions are commenced in Justices' Courts by filing with the Jus- 
tice a complaint or account, verified by the party, his agent or attor- 
ney, to the effect that he believes it to be true, and the issuance of a 
summons or notice thereon. The summons or notice is returnable 
in not less than six nor more than twenty days from the filing of the 
complaint. • , 



CHAPTER IV. 

PLACE OF TRIAL OF CIVIL ACTIONS. 

Actions for the recovery of the possession of, or for the fore- 
closure of a mortgage on, or in any wise affecting the title to real 
property, and all questions involving the right or title to personal 
property, or for the detention or injury to such property, shall be 
brought in the county in which the subject of the action or some 
part thereof is situated. 

Actions for a penalty or forfeiture imposed by statute, or against 
public officers, shall be tried in the county or district where the 
cause of action or some part thereof arose. 

Actions against corporations may be brought in any county where 
the corporation has an office for the transaction of business, or any per- 
son resides upon whom process against such corporation may be served. 
In all other cases the action shall be commenced and tried in the 



332 Washington. [Part 11. 

district embracing the county in which the defendants, or either of 
them, reside, or may be. served with process ; or if none of them re- 
side in the Territory, the same may be tried in any district or 
county which the plaintiff may designate in his complaint. 



CHAPTER V. 

LIMITATION OF ACTIONS. 

The period prescribed for the limitation of actions, from the time 
the cause of action accrues, is as follows : 

For the recovery of real property, $r the possession thereof, 
twenty years ; upon a judgment or decree of any Court of the 
United States, or of any State or Territory within the United 
States, or upon a contract in writing or liability, express or implied, 
arising out of a written agreement, or for the rents and profits, or 
use and occupation of real estate, six years ; for waste or trespass 
upon real property, or for taking, detaining, or injuring personal 
property, including an action for the recovery thereof, or for any 
other injury to the person or rights of another not hereinafter 
enumerated ; upon a contract or liability, express or implied, which 
is not in writing, and does not arise .out of any written instrument ; 
for relief upon the ground of fraud, (the cause of action in such case 
not to be deemed to have accrued until the discovery by the ag- 
grieved party of the facts constituting the fraud) against a ministe- 
rial officer upon a liability incurred by the doing an act in his 
official capacity, or by the omission of an official duty, including the 
non-payment of money collected upon execution ; upon a statute for 
a penalty or forfeiture, and for seduction and breach of marriage 
contract, three years ; for libel, slander, assault, assault and battery 



Chap. 6.] Washington. 333 

and false imprisonment, actions upon a statute for a forfeiture or 
penalty to the Territory, two years ; against a Sheriff, or other 
officer, for the escape of a prisoner arrested or imprisoned on civil 
process, one year. 

When the cause of action arises in another State or Territory, 
between a resident of that State or Territory and of this Territory, 
the foregoing limitations apply. When the cause of action arises in 
another State or Territory between non-residents of this Territory, 
and the same would be barred there by the lapse of time, it will be 
barred here. An action shall be deemed commenced as to each de- 
fendant when the complaint is filed. 



CHAPTER VI. 

ATTACHMENTS. 

The plaintiff, at the time of issuing the summons, or at any time there- 
after, and before judgment, may have the property of the defendant 
attached as security for the satisfaction of such judgment as he may 
recover, whenever he or any one on his behalf shall make and file 
an affidavit that a cause of action exists against the defendant, and 
the grounds thereof, and that the defendant is either — first, a for- 
eign corporation ; or second, that he is not a resident of this Terri- 
tory, or has departed therefrom with intent to delay or defraud his 
creditors, or to avoid the service of process, or keeps himself con- 
cealed therein with like intent ; or third, that he has removed, or is 
about to remove, any of his property from the Territory with intent 
to delay or defraud his creditors ; or fourth, that he has assigned, se- 
creted or disposed of any of his property, or is about to assign, se- 
crete or dispose of it with intent to delay or defraud his creditors ; 



334 WASHINGTON. [Part 11. 

or fifth, that the defendant has been guilty of a fraud in contract- 
ing the debt or incurring the obligation for which the action is 
brought. 

Before the writ issues the plaintiff must file with the Clerk a 
bond, with one or more sureties, in a sum not less than one hundred 
dollars and equal to the amount for which the plaintiff demands 
judgment, to the effect that the plaintiff will pay all costs that may be 
adjudged to the defendant, and all damages which he may sustain by 
reason of the attachment, if the same be wrongful, oppressive, or 
without sufficient cause. All property may be attached not by law ex- 
empt from execution, including debts owing to defendant. The de- 
fendant may have the property attached delivered to him by execut- 
ing to the Sheriff a bond, with surety approved by him, to the effect 
that such property shall be properly kept and delivered upon demand, 
to be held on execution ; or that he will pay the appraised value 
thereof ; or the defendant may, before the time for answering ex- 
pires, apply to the Court or Judge for the discharge of the attach- 
ment, on the grounds that it was improperly or improvidently 
issued. 

Writs of attachment may be issued by Justices of the Peace, upon 
any of the foregoing grounds, except that the debt was contracted 
in fraud, and on the additional grounds that the defendant is a non- 
resident of the county, or is secretly leaving or has left the county, 
with the intent to hinder, delay, or defraud his creditors. 



Chap. 7.] Washington. 335 

CHAPTEE VII. 

ARREST IN CIVIL ACTIONS. 

The defendant, upon an order of the Court or Judge of the 
Supreme Court, may be arrested in the following cases, and no 
other : 

1. In an action for the recovery of damages on a cause of action 
not arising out of contract, where the defendant is a non-resident of 
the Territory, or is about to remove therefrom, or where the action 
is for an injury to person or character, or for injuring or wrongfully 
taking, detaining, or converting property. 

2. In an action for a fine or penalty, or on a promise to marry, or 
for money received, or property embezzled or fraudulently misap- 
plied, or converted to his own use by a public officer, or by an attor- 
ney, or by an officer or agent of a corporation in the course of his 
employment as such, or by any factor, agent, broker, or other person 
in a fiduciary capacity, or for any misconduct or neglect in office, or 
in a professional employment. 

3. In an action to recover the possession of personal property un- 
justly detained, when the property, or any part thereof, has been 
concealed, removed, or disposed of, so that it cannot be found or 
taken by the Sheriff, with the intent that it should not be so found 
or taken, or with the intent to deprive the plaintiff of the benefit 
thereof. 

4. When the defendant has been guilty of fraud in contracting 
the debt or incurring the obligation for which the action is brought, 
or in concealing or disposing of the property, for the taking, deten- 
tion, or conversion of which the action is brought. 

5. When the defandant has removed or disposed of his property, 
or is about to do so, with intent to defraud his creditors. 

6. When the action- is to prevent threatened injury to, or destruc- 
tion of, property, and the danger is imminent that such property 
will be destroyed, or its value impaired, to the injury of plaintiff. 

7. On the final judgment or order of any Court in the Territory, 



336 Washington. [Part 11. 

when the defendant having no property subject to execution, or not 
sufficient to satisfy the judgment, has money which he ought to ap- 
ply in payment upon such judgment, which he refuses to apply, with 
intent to defraud plaintiff ; or when he refuses to comply with the 
legal order of the Court, with intent to defraud the plaintiff. 

The Court or Judge making the order shall first be satisfied by 
affidavit of the party, his agent or attorney, and other proof in vjrit- 
ing, that one or more of the above causes exist. Before the order 
of arrest issues, the plaintiff, or some one in his behalf, shall file a 
bond with the Clerk in such amount as the Court or Judge may have 
fixed in the order, with sureties to the satisfaction of the Clerk, con- 
ditioned to pay to the defendant all damages he shall suffer and all 
expenses he shall incur by reason of such arrest and imprisonment, 
if the order be vacated, or if the plaintiff fail to recover in his ac- 
tion. The defendant may, on motion, apply to the Court to vacate 
the order of arrest on the ground of insufficiency of the proof, or 
he may show that the facts alleged are untrue, or he may give bail. 

The grounds for issuing a warrant of arrest by a Justice of the 
Peace are the same as above. 



Chap. 8. WASHINGTON. 337 

CHAPTER VIII. 

JUDGMENTS AND JUDGMENT LIENS. 

In addition to judgments of non-suit and judgments upon the 
merits, either on trial by jury or by the Court, the plaintiff may have 
judgment by failure of the defendant to appear and answer, or upon 
the confession of judgment by defendant. A judgment in the Dis- 
trict Court is a direct lien on the real estate of the defendant in the 
county where the judgment is rendered for twenty days after its 
rendition. The plaintiff, to continue the lien, must, at the expira- 
tion of said twenty days, file a transcript of the judgment in the 
office of the County Auditor of any county where the real estate is 
situated, which lien shall continue for five years from the date of the 
judgment. 

To make a judgment in Justices' Courts a lien on real estate, the 
plaintiff must file a transcript of such judgment in the office of the 
Clerk of the District Court, and file such transcript, certified by the 
Clerk, in the office of the County Auditor of the county where the 
real estate is situated. 



338 Washington. [Part 11. 



CHAPTER IX. 

EXECUTIONS, EXEMPTIONS, SALES AND REDEMP- 
TIONS. 

The plaintiff may have execution on a judgment at any time with- 
in five years after its rendition ; if the period of five years shall 
have elapsed without an execution having been issued, none shall 
issue unless the creditor or his assignee shall file a motion with the 
Clerk of the Court to issue an execution, verified in like manner as 
a complaint, and shall cause notice of such motion to be served on 
the judgment debtor in like manner and with like effect as a sum- 
mons. The motion shall be tried as any other action. Upon hear- 
ing the motion, the Court may order that judgment be entered and 
docketed as other judgments. Executions require the Sheriff to ex- 
haust the personal property of the defendant, not exempt from exe- 
cution, before levying on real estate. They can be issued to any 
Sheriff in the Territory, when the defendant has property, by plain- 
tiff, his agent or attorney, making an affidavit that the defendant 
has not sufficient property in the county where the execution is is- 
sued to satisfy the judgment, but that he has property subject to ex- 
ecution in such other county. Execution may be stayed by defend- 
ant on giving a bond to the opposite party in double the amount of 
the judgment and costs, with surety to the satisfaction of the Clerk, 
conditioned to pay said judgment, interest, costs and increased costs, 
at the expiration of the period of the stay, which is as follows : In 
the Supreme Court, on all sums under $500, thirty days ; on all 
sums over $500 and under $1,500, sixty days ; on all sums over 
$1,500, ninety days. In the District Court, on all sums under $300, 
two months ; on all sums over $300 and under $1,000, five months ; 
on all sums over $1,000, six months. In Justices' Courts, on any 
sum not exceeding $25, one month ; more than $25, two months. 

Exemptions. 

All property, real and personal, belonging to a married woman at 
the time of her marriage, and all which she may subsequently acquire in 



Chap. 9.] Washington. 339 

her own right, and all the personal earnings, and all the issues, rents 
and pro-tits of such real estate shall not be liable to attachment or 
execution upon any liability or judgment against the husband, so 
long as she or any minor heir of her body shall be living. Every 
householder, being the head of a family, is entitled, as exempt from 
attachment and execution, to a homestead not exceeding in value the 
sum of one thousand dollars, while occupied as such by the owner 
thereof, or his or her family. The following property shall also be 
exempt from execution : All wearing apparel, private libraries, fam- 
ily pictures and keepsakes ; to each householder one bed and bed- 
ding, and one additional bed and bedding for every two members of 
the family, and other household goods, utensils, and furniture not 
exceeding $150 coin in value ; two cows and calves, five swine, two 
stands of bees, twenty -five domestic fowls, and provisions and fuel 
for the comfortable maintenance of such householder and family for 
six months. To a farmer, one span of horses and harness, or two 
yoke of oxen, with yokes and chains, and one wagon ; also farming 
utensils, actually used about the farm, not exceeding in value $200 
in coin. To a mechanic, the tools of his trade, also material not ex- 
ceeding in value $500 coin. To a physician, his library not exceed- 
ing in value $500 coin ; also one horse and buggy, the instruments 
used in his practice, and medicines not exceeding in value $200 coin. 
To attorneys, clergymen and other professional men, their libraries, 
not exceeding $500 coin value, and office furniture, fuel and station- 
ery not exceeding $200 coin value. All firearms kept for the use of 
any person or family. To all persons, a canoe, skiff or small boat, 
with its oars, sails and rigging, not exceeding $50 coin. To a per- 
son engaged in lightering for his support, one or more lighters, 
barges, or scows, and a small boat with oars, sails and rigging, not 
exceeding in the aggregate $250 coin value. To a teamster or dray- 
man, his team — the word team meaning a span of horses, harness, 
and one wagon or dray. To a person engaged in logging for the 
support of himself and family, three yoke of work cattle, with their 
yokes, and axes, chains, implements for the business and camp equip- 
ments, not exceeding $300 coin in value ; a sufficient quantity of 
hay, grain or feed to keep the animals herein exempt for six months. 
iSTo property shall be exempt from an execution issued on a judg- 
ment for the price or any part of the price thereof. 



340 Washington. [Part 11. 

Sales. 

Personal property is sold by the Sheriff upon ten days' notice of 
the time and place of such sale, posted in three public places of the 
county ; real estate, by posting similar notices, particularly describ- 
ing the property, for four weeks in three public places of the county 
where the property is to be sold, and publishing a copy thereof once 
a week, for the same period, in a newspaper of the county, if there 
be one, if not, then in a newspaper published nearest to the place of 
sale. All sales of property upon execution shall be by auction. 
Sales of personal property shall be in view of the property ; and of 
real estate^ at the Court-house door. 

Redemption. 

Sales of real estate are confirmed at the next term of the District 
Court, and the defendant, or his successor in interest, or any person 
having a lien thereon, may redeem such real estate within six months 
after confirmation, by paying the amount, with two per cent, interest 
per month. 



/ 



Chap. 10.] WASHINGTON. 341 

CHAPTER X. 

PROCEEDINGS SUPPLEMENTARY TO EXECUTION. 

The plaintiff in proceedings supplementary to execution may, 
upon a proper showing to the Court or Judge, have an order requir- 
ing defendant to appear and answer as to any property which he 
may have subject to execution, and which ought to be applied on 
the judgment; or if it appears there is danger of the defendant ab- 
sconding, the order may require his arrest, and upon being brought 
before the Judge he may be ordered to enter into bond, with surety, 
that he will appear from time to time during such proceedings, and 
will not in the meantime dispose of any of his property subject to 
execution. Any person indebted to the defendant in a sum ex- 
ceeding fifty dollars, may be required to appear and answer concern- 
ing the same. 



342 Washington. [Part 11. 

CHAPTER XI. 

SECURITY FOR COSTS. 

When the plaintiff resides' out of the district or county, or is a 
foreign corporation, security for costs may be required by the de- 
fendant ; when required, all proceedings in the action shall be 
stayed until a bond, executed by two or more persons, be filed with 
the Clerk, conditioned that they will pay such costs and charges as 
may be awarded against plaintiff, not exceeding the sum of S200. 



CHAPTER XII. 

APPEALS AND WRITS OF ERROR 



May be taken from the District Courts to the Supreme Court of 
the Territory within six months from the date of the order, judg- 
ment or decree appealed from, and not afterward. To stay pro- 
ceedings in the Court below, the appellant or plaintiff in error must 
file a bond with sureties to the satisfaction of the Clerk. Appeals 
from the Probate Court to the District Court must be taken within 
sixty days from the rendition of the decision or judgment; and from 
Justices of the Peace to the District Court, within twenty days from 
the date of the judgment. The party appealing shall execute and 
file with the Justice a bond, with one or more sureties, in the sum of 
$100, to the effect that the appellant will pay all costs ; or if a stay 
of proceedings be claimed, a bond, with two or more sureties, in a 
sum equal to twice the amount of the judgment. 



Chap. 13.] Washington. 343 

CHAPTER XIII. 

ESTATES OF DECEASED PERSONS. 

Claims against decedents' estates must be filed within one year 
from the publication of notice to creditors. The Court may, how- 
ever, in its discretion, order a shorter time in any particular case, 
but not less than six months from the date of notice. To entitle a 
claim to be filed, it must be supported by the affidavit of the claim- 
ant that the amount is justly due, that no payments have been made 
thereon, and that there are no offsets to the same to the knowledge 
of the claimant. The oath may be taken before any officer author- 
ized to administer oaths ; and in a neighboring State or Territory, 
the oath, if not administered by a Commissioner for the Territory, 
must be properly authenticated; the certificate stating that such per- 
son is authorized to administer oaths, and that his signature is gen- 
uine, with the seal of a Court of record to such certificate. The 
claim being thus proved, must be presented to the Administrator for 
his allowance ; if he allow it, it is presented to the Probate Judge 
for his allowance, when, if allowed by him, the same is filed. If 
either the Administrator or Probate Judge reject it, the party has 
three months within which to bring suit on it. Estates must be 
settled within one year, unless further time be granted by the 
Court. 

Husband or wife can only dispose of, by will, their separate prop- 
erty. On the death of either, the whole of the community prop- 
erty, subject to the community debt, goes to the survivor. 



344 Washington. [Part 11. 

CHAPTER XIY. 

HOMESTEADS. 

See Exemptions. A homestead may consist of a house and lot. 
or lots, in any city, or of a farm of any number of acres, so that 
their value does not exceed $1,000. To entitle a person to a home- 
stead, he or she shall cause the word " homestead " to be entered of 
record in the margin of his or her recorded title to the same, and the 
date of such entry. 



CHAPTER XV. 

DEPOSITIONS 

Of witnesses residing in the Territory may be taken, when the wit- 
ness resides out of the sub-district, and more than twenty miles from 
the place of trial ; or when the witness is about to leave the district, 
and go more than twenty miles from the place of trial, and there is 
a probability that he will continue absent when the testimony is re- 
quired : or when he is sick, infirm, or aged, so as to make it proba- 
ble he will not be able to attend the trial before any Judge of the 
District Court, Justice of the Peace, Clerk of the Supreme or Dis- 
trict Courts, Mayor of a city or Notary Public, upon serving on the 
adverse party, or his attorney, three days' notice of the time and 
place of examination, and one day (Sundays excepted), for every 
ten miles of the distance of the place of examination from the resi- 
dence of the person to whom notice is given. The deposition shall 
be written by the officer taking the same, or by the witness, or by 



Chap. 15.] Washington. 345 

some disinterested person in the presence and under the direction of 
such officer. When completed it shall be carefully read to or by the 
witness,- corrected if desired, subscribed by him, and certified by the 
officer substantially as follows : 



i« 



Territory of Washington 
County of 

I, A B, Justice of the Peace, in and for said county, (or Judge's 
Clerk, etc., as the case may be,) do hereby certify, that the above 
deposition was taken before me and reduced to writing by myself 

(or witness, as the case may be,) at , in said county, on the 

day of 18 — , at o'clock, in pursuance of notice hereto an- 
nexed ; that the above-named witness before examination, was 
sworn (or affirmed) to testify the truth, the whole truth, and noth- 
ing but the truth, and that the said deposition was carefully read 
to (or by) said witness, and then subscribed by him. 

A B, Justice of the Peace. 

Dated at , the day of -, 18 — . 

The deposition shall be inclosed in a sealed envelope by the officer 
taking the same, and directed to the Clerk of the Court, arbitrators, 
referee or Justice of the Peace before whom the action is pending, 
and either delivered to the Clerk of the Court or other person, or 
transmitted through the mails, or by some private opportunity. 

Depositions may be taken out of the Territory, by a Judge, Jus- 
tice or Chancellor, or Clerk of any Court of record, a Justice of the 
Peace, Notary Public, Mayor or chief Magistrate of any city or 
town, or any person authorized by special commission from any 
Court of the Territory ; any Court of record, or the Judge thereof, is 
authorized to grant a commission to take depositions in or out of 
the Territory ; prior to the taking of any deposition, unless taken 
under a special commission, a written or printed notice specifying 
the action or proceeding, the name of the Court or tribunal in 
which it is to be used, and the time and place of taking the same 
shall be served on the adverse party, his agent, or attorney of record, 
or left at his usual place of abode ; said notice shall be served so as 
to allow the adverse party sufficient time by the usual route of 
travel to attend, and one clay for preparation, exclusive of Sunday 
and the day of service, and the examination may, if so stated in the 



346 Washington. [Part 11. 

notice, be adjourned from day to day. If the party, against whom 
the deposition is to be read, is absent from or a non-resident of the 
Territory, and has no agent or attorney of record therein, he may 
be notified of the taking the deposition by publication for three con- 
secutive weeks in some newspaper, printed in the county where the 
action is pending ; and if none be printed there, in some newspaper 
printed in the Territory of general circulation in that county. The 
publication must contain all that is required in the written or 
printed notice. 

The deposition should be written and certified as above. 



CHAPTER XVI. 

JUDICIAL RECORDS OF OTHER STATES, HOW PROVED. 

The records and proceedings of any Court of the United States, 
or any State or Territory, shall be admissible in evidence in all 
cases in Washington Territory, when authenticated by the attesta- 
tion of the Clerk, Prothonotary, or other officer having charge of the 
records of such Court, with the seal of such Court annexed. 



Chap. 17.] Washington. 347 

CHAPTER XVII. 

ACKNOWLEDGMENTS. 

All deeds affecting the title to real estate, or of any interest 
therein, and all contracts creating or evidencing any incumbrance on 
real estate, shall be by deed. All deeds must be acknowledged be- 
fore one of the following officers, if made in the Territory : a Judge 
of the Supreme Court, a Judge of the Probate Court, a Justice of 
the Peace, a County Auditor, Deputy Auditor, a Clerk or Deputy 
Clerk of the District or Supreme Court, or a Notary Public, duly 
qualified. If made out of the Territory, but in the United States, 
they may be acknowledged before any person authorized to take ac- 
knowledgments of deeds by the laws of the State or Territory wherein 
the acknowledgment is taken, or before any Commissioner appointed 
by the Governor of Washington Territory for such purpose. Unless 
such acknowledgment be taken before such Commissioner or by the 
Clerk of a Court of record of said State or Territory, or by a Notary 
Public or other officer having a seal of office, then such deed shall 
have attached thereto a certificate of the Clerk of a Court of rec- 
ord of the county or district within which the acknowledgment was 
taken, under the seal of his office, that the person whose name is 
subscribed to the certificate of acknowledgment was, at the date 
thereof, such officer as he .is therein represented to be; that he is 
authorized by law to take acknowledgments of deeds ; and that he 
believes the signature of the person subscribed thereto to be genuine. 
If made in a foreign country, out of the United States, they shall 
be acknoAvledged or proved by two witnesses before any Minister 
Plenipotentiary, Charge (V Affaires, Consul, " General Consul," Vice- 
Consul, or Commercial Agent appointed by the Government of the 
United States to any foreign country, or the proper officer of any 
Court of such country, or the Mayor or other chief Magistrate of any 
city, town, or corporation therein. Such officer shall make and sign 
officially a certificate of acknowledgment, or of the proof by two 
witnesses, as the case may be, which shall be annexed to the deed. 



348 Washington. [Part 11. 

There are no particular requisites of an acknowledgment, except 
in case of a married woman. She shall not be bound by any deed 
affecting her own real estate or any interest in real estate, unless 
she shall be joined in the conveyance by her husband, and shall, 
upon an examination by the officer taking the acknowledgment, ac- 
knowledge that she did voluntarily, of her own free will, execute the 
deed. 

In case the owner of a homestead voluntarily mortsrao-es the same, 
said mortgage shall not be valid against his wife, unless she shall 
freely and voluntarily, separate and apart from her husband, sign 
and acknowledge it, and the officer taking the acknowledgment shall 
fully apprise her of her rights, and of the effect of signing such mort- 
gage. 



CHAPTEK XVIII. 

LIMITED PARTNERSHIPS. 



There is no law of limited partnerships in this Territory. The 
liability of partners is unrestricted 



Chap. 19.] Washington. 349 



CHAPTER XIX. 

MARRIED WOMEN 

Cannot become sole traders in this Territory. All property owned 
by the wife at the time of her marriage, and that acquired after- 
ward by gift, bequest, devise or descent, is her separate property, 
but is liable for her husband's debts, unless she has a recorded in- 
ventory of the same in the office of the County Auditor of the county 
where the property is situated. The wife can make no contract in 
her own right, except in particular cases affecting her separate 
property. 

Act of 1879. 

The wife may, without the consent of her husband, sell her sepa- 
rate personal property, but where her separate real estate is to be 
conveyed or incumbered, the husband must join in deed, and wife 
must join husband conveying his separate real estate. 



350 Washington. [Part 11. 

CHAPTER XX. 

CORPORATIONS. 



Each and every stockholder shall be personally liable to the 
creditors of the company to the amount of what remains unpaid on 
his subscription to the capital stock, and not othertvise. 



CHAPTER XXI. 



CHATTEL MORTGAGES 



May be made upon locomotives, engines, and the other rolling stock 
of a railroad ; steam machinery and machinery used by machinists, 
foundrymen and mechanics ; steamboat engines and boilers ; mining 
machinery ; printing presses and material ; professional libraries ; 
instruments of a physician, surgeon or dentist ; upholstery and 
furniture used in hotels or boarding-houses, when mortgaged to se- 
cure the purchase money of the articles mortgaged ; growing crops, 
vessels of more than five tons burden, and all other kinds of per- 
sonal property. The mortgage must be accompanied by the affi- 
davit of all the parties thereto that it is made in good faith, and 
without any design to hinder, delay, or defraud creditors. It must 
be acknowledged or proved, certified and recorded in the same man- 
ner as deeds to real estate. It must be recorded in the office of the 
County Auditor where the mortgagor resides, and also of the county 



Chap. 22.] WASHINGTON. 351 

in which the property mortgaged is situated, or to which it may be 
removed, and must be recorded in books kept for chattel mortgages 
exclusively. 

Chattel Mortgage Law of 1879. 

When the mortgagee has reasonable cause to believe that the 
mortgaged property will be destroyed, lost or removed, he shall have 
the right to an immediate action, even though the debt is not due, 
and makes a misdemeanor to remove the property (by the mortgagor) 
from the county where situated without consent in writing of mort- 



chapter xxii. 

INTEREST. 

The legal rate of interest is ten per cent, per annum, in the ab- 
sence of any contract in writing fixing a different rate. Parties 
may contract in writing for any rate of interest that they may 
agree upon. 



352 Washington. [Part 11. 

CHAPTER XXIII. 

INSOLVENT LAW. 



Every insolvent debtor may he discharged from his debts on exe- 
cuting an assignment of all his property, real, personal or mixed, for 
the benefit of all his creditors, in compliance with the provisions of 
the Act of. the Legislative Assembly, approved January 31, 1867, 
provided said assignment " be made bona fide and without fraud." 

The District Court has original jurisdiction in matters of insol- 
vency. The insolvent debtor petitions the Judge having original 
jurisdiction within his place of domicile or usual residence, briefly 
stating the causes which compel him to surrender his property to his 
creditors, and prays to make a cession of his estate and be discharged 
from his debts ; he shall annex to said petition a schedule containing 
a list of the losses he may have sustained, giving the names of his 
creditors, if known, amount due to each creditor, the cause and na- 
ture of such indebtedness and when it accrued, and a statement of 
any existing judgment, mortgage, collateral or other securities for 
the payment of any such debt ; it shall contain a full, complete and 
perfect inventory of all his property, real, personal and mixed ; of 
all choses in action ; debts due or to become due, and all moneys on 
hand, and a full statement of all incumbrances on his property. He 
shall estimate and set forth in said schedule his property at its cash 
value. 

He shall subscribe and swear to the schedule. (The form of the 
oath is given in the statute, and it is exceedingly strong and for- 
cible. ) 

The Judge then makes an order requiring all the creditors to show 
cause why an assignment should not be made, and the insolvent dis- 
charged from his debts. 

The homestead, if any, and property exempt from execution are 
included in the schedule, but it is the duty of the Judge to set it 
apart for the use and benefit of the insolvent. The insolvent shall, 
on or before the day appointed for the meeting of his creditors, de- 



Chap. 23.] Washington. 353 

liver to the Court all his books of account, and vouchers, notes, 
bonds, bills, securities or other evidences of debt bearing on the 
property surrendered, and they shall be filed and ultimately deliv- 
ered to the assignees who may be appointed. 

A notice is published by the Clerk of the Court directing the 
creditors to appear before the Judge at chambers or in open Court, 
to show cause why the petition should not be granted ; meantime all 
proceedings against the insolvent are stayed, which does not, how- 
ever, prevent the appointment of a receiver by the Judge to take 
possession of all the insolvent's property ; provided, one or more of 
his creditors shall show cause therefor by preliminary affidavit, and 
satisfactory proof of the facts on which it is founded. 

At the creditors' meeting they first certify " on oath that their 
respective claims are legitimate and true," and then appoint one or 
more assignees, not exceeding three. In appointing assignees, "the 
opinion of the majority of said creditors, in sums or in claims, shall 
prevail," and any creditor may be represented by his "duly author- 
ized agent or attorney." 

When the assignee or assignees have been appointed and the sur- 
render of the property accepted of, the assignees file in the Clerk's 
office " a certified statement of the deliberations of said creditors on 
the appointment of said assignees," and they give bond in such sum 
as the majority of the creditors may have determined ; or if they 
have not fixed on any amount, the Judge shall determine it. 

The insolvent's property is sold at public auction by the assignees, 
on twenty days' notice by publication in a newspaper of the county, 
or if none, in the one nearest thereto. 

The assignees (if more than one) shall deposit all funds " belong- 
ing to the failure " in their joint names, and they shall never be 
used till distributed according to the directions of the Court ; 
they may sue or be sued in respect to the insolvent or his creditors, 
and all suits againt the insolvent shall be transferred to the Court 
having jurisdiction of the insolvency. 

The assignees shall declare dividends when they have funds ; and 
any creditor may make a motion, at any time, to know if they have 
funds in their hands, and they shall, if they have, be compelled to 
present their accounts and make distribution ; or, if they neglect to 
do so, shall be removed by the Judge or Court, and others may be 



354 Washington. [Part 11. 

appointed by said Judge or Court. In that event the former 
assignees forfeit all claim to any commission and pay twenty per 
cent, in addition to the amount of funds in their hands, as a penalty. 

The assignees collectively receive ten per cent, on a sum not ex- 
ceeding $10,000 ; eight per cent, on sums above $10,000, and not 
exceeding $30,000 ; six per cent, on sums above $30,000, and not 
exceeding $60,000 ; and four per cent, on sums exceeding $60,000. 

If no creditors attend on the day appointed for the meeting, the 
Judge may authorize the Sheriff to receive the surrender of the 
property and perform the functions of assignee. 

If after the appointment of assignees, any one of the creditors 
deems it necessary to oppose the assignment on account of fraud of 
the insolvent, or the assignment not having been legally made, he 
shall, within ten clays after the appointment, lay before the Judge 
or Court his written opposition, specifying the facts on which it is 
based, and in case of fraud, a trial is had before a jury of six men, 
at which the objecting creditor " shall have the right to interrogate 
the insolvent debtor on oath, and put to him such written questions 
as to the state of his affairs, and the several transactions in which 
he may have been engaged anterior to his failure, as he shall think 
proper, and the insolvent shall answer in writing the said interroga- 
tories in a pertinent and distinct manner, and every equivocal an- 
swer on his part shall be construed against him." If the jury find 
the insolvent guilty of fraud, he shall forever be debarred from the 
benefit of the Territorial insolvent laws. 

All persons shall be considered as " fraudulent bankrupts " who 
shall be convicted of having concealed their property with the inten- 
tion to keep it from their creditors; or of having concealed or altered 
their books or papers with like intention ; or of having passed sham 
deeds with intent to deprive their creditors of the whole or any 
part of their property ; or of intentionally omitting any of his 
property from his schedule ; or of having purloined his books or any 
of them ; or of having altered, changed, or made them anew with in- 
tent to defraud his creditors ; or of having fraudulently alienated, 
mortgaged, or pledged any of his property ; or of having " com- 
mitted any other kind of fraud to the prejudice of his creditors." 

The insolvent shall be debarred from the privileges of the act, if 
he shall be convicted of having at any time within three months 



Chap. 23.] Washington. 355 

preceding his failure, " f radulently sold, engaged or mortgaged any 
of his goods or effects, or of having otherwise assigned, transferred, 
or disposed of the same, or any part thereof, or confessed judgment 
in order to give a preference to one or more of his creditors over 
others. " 

All debtors accountable for public funds, all " unfaithful deposi- 
taries," all who refuse or neglect to pay all funds received by them 
as bankers, brokers, commission merchants, or in any fiduciary ca- 
pacity are debarred the benefits of the act. 

If, after the insolvent has had the benefit of the act, it be made 
thereafter to appear that he has concealed any part of his property 
or estate or given a false schedule, or committed any fraud under 
the provisions of the act, he forfeits all its benefits and cannot " avail 
himself of any of its provisions in bar to any claim that may be in- 
stituted against him." 

After the surrender of the property of the insolvent it vests in the 
assignees. 

The Judge shall appoint an attorney to represent all creditors re- 
siding out of the Territory who have no attorney to represent them, 
but the mass of the creditors pay said attorney nothing; his fees 
are levied on the amount recovered for such non-resident creditors, 
at the rate of ten per cent. , and in no case shall said fees exceed 



The insolvent must surrender to the assignees all the property 
contained in his schedule ; if not the Judge shall order the Sheriff 
to take the property and deliver it to the assignees, or may imprison 
the insolvent till he surrenders it. 

The assignees shall make out and verify an account of their dis- 
bursements, which if approved, the Judge shall certify, and allow the 
amount thereof out of the insolvent's property. 

A member of a firm may make an assignment of copartnership 
property with the consent in writing of the other members ; when 
all join they may include in the assignment all their individual as 
well as partnership property, and may be discharged from both 
classes of debts in the same proceeding, but partnership property 
shall be applied to partnership debts, and individual property to in- 
dividual debts. 



PART XII. 



BRITISH COLUMBIA. 



PREPARED EXPRESSLY FOR THIS WORK BY M. W. T. DRAKE, 

VICTORIA. 



CHAPTER I. 

COURTS— THEIR JURISDICTION AND TERMS. 

The Supreme Court is presided over by a Chief Justice and two 
pusne Judges. This Court exercises a legal and equitable jurisdic- 
tion in all matters. It has sole control over the estate of infants, 
lunatics and deceased persons, and claims a jurisdiction in divorce 
and matrimonial causes. The admiralty jurisdiction of the Province 
is vested in the Chief Justice alone. It is the Court of Appeal from 
all inferior tribunals, and from it there is an appeal to the Supreme 
Court of Canada and Privy Council of England. 

The Judges also sit as Judges of assize for the trial of criminals. 

The Court holds three terms annually for the purpose of dispos- 
ing of law points reserved at trials, for hearing motions for new 
trials, appeals, special cases, etc., etc. These sittings are held at 
Victoria, and the terms are held in February, April and November. 

For matters of procedure the Judges sit constantly. 



358 British Columbia. [Part 12. 

The Assize Courts are held three times a year, for the trial of 
prisoners and civil causes with a jury. The Assize Courts are held 
all through the Province, the Judges going on circuit for the 
purpose. 

All matters not jury cases are disposed of by the Court on ap- 
plication. 

The County Court is held for the trial of actions of debt or dam- 
age up to $500. Actions of ejectment, libel, false imprisonment, 
and some others, are excluded from the cognizance of these Courts. 

This Court is held every month, and disposes of the cases brought 
before it without pleadings, and in a summary and expeditious 
manner. The Province is divided into six districts for this purpose, 

The Justices of the Peace have no civil jurisdiction. All pris- 
oners have to be committed by the Justices before they can be tried. 
At the assizes, and after committal, the case goes before the grand 
jury, and if a true bill is found the prisoner is put on his trial ; if 
no bill is found he is at once discharged. 

The municipalities have also a limited jurisdiction for enforcing 
their by-laws. 



CHAPTER II. 

COMMENCEMENT OF SUITS. 

Civil suits in the Supreme Court are commenced by writ of sum- 
mons, to which the defendant has to appear in eight days ; if he 
fails to appear after due service, the plaintiff signs judgment for his 
debt ; if he appears, the plaintiff proceeds to state his cause of ac- 
tion in a pleading called a declaration, to which the defendant re- 
plies by a plea, and in the majority of cases the action being thus 
put in issue is set down for trial ; but any neglect of the defendant 



Chap. 2.] BRITISH COLUMBIA. 359 

to proceed according to the rule, subjects him to the penalty of hav- 
ing judgment signed against him. In some cases the pleadings ex- 
tend considerably beyond this, until at last they arrive at issue and 
are then ripe for trial. 

In the generality of cases a jury is not summoned unless at the 
request of either plaintiff or defendant, but the Judge disposes of 
both law and fact. 

In actions on bills of exchange and promissory notes, if brought 
within six months of the due date of the bill or note, the defendants 
are not allowed to defend except on special ground shown in affi- 
davits. 

All writs must be personally served, unless the defendant is keep- 
ing out of the way to avoid service, and then the Court allows sub- 
stituted service. If the defendant is abroad, whether a foreigner 
or not, special forms of writ are provided, but the service must be 
personal. 

In equity cases proceedings are commenced by bill of complaint, 
being a narrative of the circumstances on which the plaintiff relies 
for relief. The defendant has a month to answer, and after answer 
there are several different modes of bringing the suit to a hearing. 
The evidence is generally taken on affidavit, but may be viva voce. 
A single Judge disposes of equity cases without a jury. 

Suits can be disposed of at any place the plaintiff fixes ; liable to 
be chftnged on good cause shown. 



360 British Columbia. [Part 1 



CHAPTER III. 

LIMITATIONS OF ACTIONS. 

Six years is the limitation for all simple contract debts ; twenty 
years for all specialty debts. In case the cause of action arose in a 
foreign country, the defendant may plead the statute of limitations 
of such country as a bar. A foreign judgment is placed on the 
same footing as a simple contract debt, and has to be sued within 
the same time. 



CHAPTER IV. 

ATTACHMENTS— ARREST IN CIVIL ACTIONS* 

Attachments are not allowed. 

Arrest in civil actions is in practice only resorted to for the pur- 
pose of compelling a defendant who is about to leave the jurisdiction 
to give security for the alleged debt. The Sheriff keeps him in 
charge until he has put in security, or until the trial of the action. 
There is no imprisonment for debt. But the County-Court Judges 
have power of committal for disobedience of orders for payment of 
money. 



Chap. 5 and 6.] British Columbia. 361 

CHAPTER V. 

JUDGMENTS AND JUDGMENT LIENS. 

A judgment binds the lands of a debtor when registered. It also 
enables a creditor to seize the gOods of his debtor, or to compel pay- 
ment of debts due to the debtor, to himself, under what are called 
garnishee proceedings ; but a judgment does not bind the personal 
property of the debtor until the writ of execution is in the hands of 
the Sheriff. 



CHAPTER VI. 

EXECUTIONS, EXEMPTIONS, REDEMPTION, SALE. 

Executions are enforced against the land and personalty of the 
debtor. 

The debtor is entitled to an exemption of five hundred dollars in 
personalty. 

For homestead exemption, see "Homesteads." 

The debtor may redeem his property at any time before sale. Per- 
sonal property has to be sold without any delay, and by public auc- 
tion. Real property is advertised thirty days. 



362 British Columbia. [Part 12. 

CHAPTER VII. 

SECURITY FOR COSTS 

Is always required when the plaintiff is resident out of the jurisdic- 
tion of the Court, in an amount of five hundred dollars ; hut if 
within the jurisdiction, he may commence actions in forma pauperis, 
if he is not in a position to pay fees. 



CHAPTER VIII. 

APPEALS 

Are allowed from the County Courts to the Supreme Court, if made 
within forty-eight hours after the decision is objected to; from the 
Police and Magistrate Courts to the Supreme Court, if applied for 
in four days : from the Supreme Court to the Privy Council of Eng- 
land, or the Supreme Court of Canada, if the amount in dispute is 
over fifteen hundred dollars. Security required is five hundred dol- 
lars in the two latter cases. 



Chap. 9. BRITISH COLUMBIA. 363 

CHAPTEE IX. 

ESTATES OF DECEASED PERSONS. 

Intestate estates, where there is no next of kin or creditor who 
desires administration, are managed by the registrar of the Supreme 
Court as official administrator. There is no statutable time for 
sending in claims, but every estate is advertised and a time fixed. The 
claims have to be sworn to — if from a foreign country, before a No- 
tary Public, attested by the British Ambassador, Consul, or Charge 
<P Affaires. Twelve months is the time allowed to settle the estate, 
whether the deceased died intestate or not. If the deceased left a 
will legally executed, his executors manage the estate without filing 
any security, and only file accounts at the end of the twelve months. 

If they neglect their duty, the devisees have a legal remedy, but 
the Court does not control them. 

By a Provincial Statute, lands of an intestate descend to the same 
persons who would be next of kin of personal estate, but in such a 
case the widow is only entitled to dower, which is a life interest in 
one third. 

A testator may devise lands as he pleases by his will. Neither 
the widow or children are entitled by law to any interest.. 

Wills of foreigners which have been duly proved in any foreign 
Court are admitted to probate on production of a duly certified rec- 
ord of the proceedings. 



364 British Columbia. -[Part 12 

CHAPTER X. 

HOMESTEADS 



Land to the value of twenty-five hundred dollars may be made a 
homestead, if duly registered as such at a time when the owner was 
free from debt, and everyone is entitled to claim $500 on chattels to 
this value against any executive creditor. 



CHAPTER XL 

DEPOSITIONS. 



For matters in civil suits, evidence abroad is generally taken by 
Commissioners appointed by a Judge of the Supreme Court. In 
other matters, affidavits can be taken before any Minister, Ambas- 
sador, Consul, Vice-Consul, or Consular Agent, and if there is no 
one representing these functionaries, then before a Notary Public 
duly certified to be such by the Governor or Secretary of State. 



Chap. 12 and 13.] British Columbia. 365 

CHAPTER XII. 

JUDICIAL RECORDS— ACKNOWLEDGMENTS. 

Judicial records of foreign States can be proved by examined 
copies, sealed with the seal of the State if relating to State docu- 
ments, or the seal of the Court if relating to judicial records. 

Acknowledgments of deeds can be taken before a Notary Public, 
duly certified to be such by the British Consul. 



CHAPTER XIII. 

LIMITED PARTNERSHIPS. 

Joint-stock companies can limit the liability of their shareholders 
to the amount subscribed for by each, by registering under the 
statute. 

The law of private partnerships now allows a person to invest 
money in a business concern and receive a share of the profits, with- 
out being liable as a partner. 



366 British Columbia. [Part 12. 

CHAPTEK XIV. 

MARRIED WOMEN 

Can invest the money earned by any separate trade or occupation, 
and the same is free from the debts, control or engagements of the 
husband ; and landed property, held before marriage or acquired 
subsequent thereto, can be dealt with by a married woman as if she 
were femme sole, with this exception that she cannot dispose of the 
same by will unless the husband consents. 



CHAPTER XV 

MORTGAGES. 



Chattel mortgages must be registered within twenty-one days after 
execution, and an affidavit filed of the day and date of execution, in 
order to protect the property from execution creditors of the grantor. 
a mortgage unregistered is good between the parties, and if the 
mortgagee take the property into his own custody an execution cred- 
itor cannot seize it. Furniture, goods, merchandise, etc., can be 
mortgaged. Farming stock and crops are not subject to the Act. 

Mortgages of Land. 

A mortgagee of land is a specialty creditor ; he can sue his debtor 
for the amount due, sell the mortgage property, or foreclose the 
mortgage. A mortgage is good for twenty years, but it must be reg- 
istered in order to give it priority over other charges, as priority of 
registration gives priority of charge. 



Chap. 16 and 17.] British Columbia. 367 

CHAPTER XVI. 

INTEREST AND USURY. 

The legal rate of! interest is twelve per cent, per annum. All 
judgments carry this rate ; so do accounts, after notice that interest 
will be charged ; but any higher rate of interest is perfectly legal, 
as there are no usury laws in force. 



CHAPTER XVII. 

LAND LAWS. 

Persons can acquire land (three hundred and twenty acres) by 
pre-emption, on making improvements to the value of $2.50 an 
acre, and residing on the land ; and on a survey being made, a grant 
in fee simple is issued without charge, or can purchase in surveyed 
districts at $1 an acre. 

Aliens. 

Foreign citizens can be naturalized after three years' residence 
and taking the oath of allegiance. 



368 BRITISH COLUMBIA. [Part 12. 

CHAPTER XVIII. 

MUNICIPALITY LAWS. 

Commercial travelers have to pay a license of $10 for every six 
months. All other businesses pay a license varying from $5 to 
a year. 



CHAPTER XIX. 

SHIPS AND SHIPPING. 



Foreign vessels sold to a British subject can be registered in the 
Dominion, subject to a tariff of ten per cent. 



CHAPTER XX. 

INSOLVENCY. 



At the present time there are no bankruptcy or insolvency laws 
in the Dominion of Canada, and the local Legislature have passed 
acts intended to assist creditors by rendering void all judgments by 
confession or assignments of chattels given by a debtor in insolvent 
circumstances. 



INDEX 



INDEX. 



AEIZONA. 
Part IX. 

Page. 

Acknowledgments 298 

Affidavits ." 297 

Answer — Time Allowed 286 

Arrest in Civil Actions 292 

Attachments 290 

Bankruptcy - 303 

Bills of Exchange 302 

Chattel Mortgages 300 

Commencement of Suits : 286 

Courts 283 

" Terms of 285 

" Their Jurisdiction 283 

" Where held 285 

Deceased Persons — Estates of 295 

Depositions 297 

Estates of Deceased Persons 295 

Examination of Judgment Debtor 295 

Executions 293 

Exemptions from Execution 293 

Insolvency 303 

'Interest .' 301 

Judgments 293 

Judgment Liens 293 

Jurisdiction of Courts 283 

Liens of Judgments 293 

Limitation of Actions 289 



372 INDEX. 

Page. 

Married Women 299 

Mortgages of Personal Property 300 

Place of Trial of Civil Actions 287 

Proceedings Supplementary to Execution * 295 

Promissory Notes — Days of Grace 302 

Redemption 293 

Sale — Under Execution 293 

Terms of Courts 285 

Time Allowed to Answer 286 

Trial— Place of 287 



ATTORNEYS AND A NOTARY PUBLIC 
FOR SAN FRANCISCO. 



Part I, 



Arizona 18 

British Columbia 18 

California 11 

Idaho 17 

Montana 17 

Nevada 15 

Oregon 15 

Utah 16 

Washington 17 

Wyoming 18 



BRITISH COLUMBIA. 
Pakt XII. 



Acknowledgments 365 

Affidavits 364 

Aliens 367 

Appeals 362 

Arrest in Civil Actions 360 



INDEX. 373 

Page. 

Attachments : 360 

Bankruptcy 368 

Chattel Mortgages 366 

Commencement of Suits 358 

Commercial Travelers' License 368 

Courts 357 

" Terms of 357 

' ' Their Jurisdiction 357 

Deceased Persons — Estates of ... 363 

Depositions '. 364 

Estates of Deceased Persons 363 

Executions 361 

Exemptions from Execution 361 

Homesteads 364 

Insolvency 368 

Interest 367 

Joint Stock Companies 365 

Judgments 361 

Judgment Liens 361 

Judicial Records 365 

Jurisdiction of Courts 357 

Land Laws 367 

License Law 368 

Liens of Judgments 361 

Limited Partnerships 365 

Limitation of Actions 360 

Married Women 366 

Mortgages 366 

Mortgages of Land 366 

Municipal Law 368 

Naturalization 367 

Partnerships — Limited 365 

Pleadings 358 

Redemption 361 

Sale — Under Execution 361 

Ships and Shipping 368 

Security for Costs 362 

Terms of Courts 357 

Time for Appearance 358 

Usury 367 



374 INDEX. 



CALIFORNIA. 
Part III. 

Page. 

Acknowledgments 99 

Acknowledgments — Forms of 100 

Affidavits. 96 

Agent and Principal 127 

Answer — Time Allowed 35 

Answer — Time Allowed in Justice's Court 37 

Appeals in General 70 

Appeals from Superior Courts. 72 

Appeals from Justices' or Police Courts 72 

Arbitrations 91 

Arrest and Bail 51 

Assignments — For Benefit of Creditors 129 

Assignment without Prejudice to Set-off or Defense 35 

Attachments 44 

Bail — see Arrest and Bail 51 

Bankruptcy 131 

Bills of Exchange — see Negotiable Instruments 120 

Bills of Lading 109 

Certificate of Sale of Real Estate 64 

Chattel Mortgages 112 

Claim and Delivery of Personal Property 49 

Compromise — Proceedings on offer of Defendant 56 

Commencement of Actions 35 

Commission Merchants 130 

Common Carriers Ill 

Compensation of Executors 82 

Complaint, on whom to be served 36 

Confession of Judgments 55 

Contracts 118 

Corporations 93 

Costs 69 

Courts 21 

" their Jurisdiction 21 

" When and Where Held 27 

Currency Judgments 57 

Deceased Persons — Estates of 76 

Depositions 96 



INDEX. 375 

Page. 

Descents 83 

Estates of Deceased Persons 76 

Examination of Judgment Debtor 67 

Executions 60 

Executions — Proceedings Supplementary to 67 

Exemptions from Execution 61 

Form of Civil Actions 38 

Fraudulent Transfers 128 

Gold Coin Judgments 57 

Guaranty and Suretyship 115 

Holidays — Legal 153 

Homesteads 92 

Injunctions 53 

Insolvency 131 

Insolvency — Involuntary 131 

Insolvency — Voluntary 133 

Interest 110 

Joint Debtors — Proceedings Against 56 

Judgments 53 

Judgments after Verdict 56 

Judgments by Confession 55 

Judgment by Default in Justice's Court 58 

Judgments in Justices' Courts 58 

Judgments in Justices' Courts other than by Default 59 

Judgments in Replevin , 57 

Judgment Liens 57 

Judgment Liens, Justices' Courts . 60 

Judgment on Proceedings without Action 56 

Judgment on Failure to Answer 54 

Judicial Records 98 

Judicial Records — How Proved 98 

Jurisdiction of Courts 21 

Legal Holidays 153 

Letter of Credit 117 

Liens 90 

Liens for Salaries and Wages 89 

Liens of Mechanics' and others upon Real Estate 86 

Limitation of Civil Actions 31 

Married Women 106 

Mechanics' Liens 86 

Minors 107 

Mode of taking Testimony of Witnesses 96 

Mortgages of Personal Property 112 

Negotiable Instruments , . . , 120 



376 INDEX. 

Pag*. 

Xew Trials 75 

Parties to Suits 35 

Partnerships 102 

Personal Property — Mortgages of 112 

Place of Trial, Civil Actions 28 

Pleadings - 38 

Pleadings — Provisions in Justices' Courts 42 

Pledge 114 

Principal and Agent 127 

Proceedings on Offer of Defendant to Compromise 56 

Proceedings Supplementary to Execution 67 

Promissory Notes — see Xegotiable Instruments 120 

Publication — Service by 36, 37 

Redemption 64 

Replevin — see Claim and Delivery 49 

Replevin — Judgment in 57 

Salaries — Liens for 89 

Sale 117 

Sale of Real Estate — when Absolute or not 64 

Sale of Real Estate — Certificate of 64 

Sale on Execution 63 

Sale -when Fraudulent 128 

Security for Costs 69 

Service by Publication 36, 37 

Sole Traders 107 

Stoppage in Transit 108 

Submission of Controversy without Action 56 

Succession 83 

Summons — on Whom to be Served 36 

Summons — Service by Whom Made in Justices* Courts 38 

Summons — Who may Serve 35 

Summons — Within What Time to Issue 35 

Suretyships 115 

Terms of Courts 27 

Circuit Coui't U. S 2;s 

Superior Courts 27 

District Court U. S 2S 

Justices' Courts 27 

Supreme Court 27 

Testimony of Witnesses by Affidavit 96 

Time of Holding Courts 27 

Trial of Civil Actions — Where to be tried 28 

Verification of Pleadings .» 41 



INDEX. 377 

IDAHO. 
Part VI. 

Page. 

Acknowledgments 235 

Affidavits— Before Whom to be Taken 240 

Answer — Time Allowed 217 

Appeals 227 

Arrest in Civil Actions 222 

Attachments 220 

Bankruptcy 243 

Chattel Mortgages 239 

Commencement of Actions 217 

Corporations 238 

Courts 215 

Courts — Terms of 215 

Courts — Their Jurisdiction 215 

Deceased Persons — Estates of 230 

Depositions 233 

Estates of Deceased Persons 230 

Examination of Judgment Debtor 226 

Executions 224 

Exemptions from Execution 224 

Homesteads .' . , 229 

Insolvency 243 

Interest and Usury 239 

Judgments 223 

Judgment Liens 223 

Judicial Records 234 

Jurisdiction of Courts 215 

Liens of Judgments 223 

Limitation of Civil Actions 219 

Limited Partnerships 236 

Married Women 237 

Mortgages of Personal Property 239 

Partnerships — Limited 236 

Place of Trial of Civil Actions 218 

Proceedings Supplementary to Execution 226 

Redemption 226 

Sales — Under Execution 225 

Security for Costs 227 



378 INDEX. 

Page. 

Sole Traders 241 

Terms of Courts 215 

Time Allowed to Answer 217 

Trial— Place of 218 

Usury 239 



JURISDICTION OF U. S. COURTS. 
Part II. 



Courts 19 

Jurisdiction of Courts 19 

Removal of Suits into U. S. Courts 19 



MONTANA. 
Part VIII. 



Acknowledgments t 278 

Answer — Time Allowed ! 271 

Appeals 276 

Arrest in Civil Actions 273 

Attachments: ' 273 

Bankruptcy 282 

Chattel Mortgages 281 

Corporations 281 

Courts 269 

Courts— Terms of 269 

Courts and their Jurisdiction 269 

Deceased Persons — Estates of 277 

Depositions 278 

Estates of Deceased Persons 277 

Examination of Judgment Debtor 276 

Executions 274 

Exemption from Execution 274 

Insolvency 2S2 



INDEX. 379 

Page. 

Interest 281 

Judgment Liens 274 

Judicial Records 278 

Jurisdiction of Courts 269 

License Laws 282 

Liens of Judgments 274 

Limitation of Actions 272 

Limited Partnerships 279 

Married Women 280 

Partnerships— Limited 279 

Place of Trial of Civil Actions 271 

Proceedings Supplementary to Execution 276 

Redemption 274 

Sale under Execution 274 

Security for Costs 276 

Terms of Courts 269 

Time Allowed to Answer 271 

Travelers' License 282 

Trial, Place of 271 

Usury 281 



NEVADA. 

Part IV. 



Acknowledgements 175 

Affidavits — Before Whom to be Taken 176 

Answer — Time Allowed 159 

Appeals 168 

Arrest in Civil Actions 163 

Attachments 162 

Bankruptcy 182 

Bills of Exchange 180 

Chattel Mortgages 179 

Courts 155 

Courts — Terms of 155 

Courts — Their Jurisdiction 155 

Corporations 178 

Deceased Persons — Estates of 169 

Depositions 171 



380 INDEX. 

Page. 

Depositions Taken Out of the State 173 

Estates of Deceased Persons 169 

Examination of Judgment Debtor 167 

Exemptions from Executions 164 

Executions 164 

Homesteads 170 

Insolvency 182 

Interest and Usury 179 

Joint Debtors — Release of 181 

Jurisdiction of Courts 155 

Judgments and Judgment Liens 164 

Judicial Records — How Proved 174 

License Law 184 

Liens of Judgments 164 

Limitation of Actions 160 

Limited Partnerships 7. 177 

Married Women 178 

Mortgages of Personal Property 179 

Mortgages of Real Property 181 

Partnerships — Limited 177 

Place of Trial 159 

Proceedings Supplementary to Execution 167 

Promissory Notes 180 

Publication — Service by 159 

Redemption 166 

Release of Joint Debtors 181 

Sale under Execution 166 

Security for Costs 167 

Service by Publication 159 

Terms of Courts 155 

Time Allowed to Answer 159 

Travelers' License Law 184 

Trial— Place of 159 

Usury 1 79 

Witnesses 171 



INDEX. 381 

OREGON. 
Part V. 

Page. 

Acknowledgments 206 

Actions — Commencement of 191 

Actions— Place of Trial 192 

Answer— Within What Time 191 

Appeals 199 

Arrest in Civil Actions 195 

Assignments for Benefit of Creditors 210 

Attachments 194 

Chattel Mortgages 209 

Commencement of Suits 191 

Courts and their Jurisdiction 187 

Courts— Terms of 189 

Corporations 208 

Deceased Persons — Estates of 200 

Depositions 204 

.Descent of Personal Property 202 

Descent of Real Property 201 

Dower 203 

Estates of Deceased Persons 200 

Examination of Judgment Debtor 198 

Executions 196 

Exemptions from Execution 196 

Homesteads 203 

Insolvency, see Assignments 210 

Interest 209 

Judgment Liens 196 

J udicial Records 205 

Jurisdiction of Courts 187 

Liens of Judgments 196 

Limitation of Actions 192 

Limited Partnerships 207 

Married Women 208 

Mortgages of Personal Property 209 

Partnerships — Limited 207 

Place of Trial of Civil Actions 192 

Proceedings Supplementary to Execution 198 

Redemption 196 



382 INDEX. 

Page. 

Sale— Under Execution 196 

Security for Costs ; 198 

Suits — Commencement of 191 

Summons 191 

Terms of Courts 189 

Usury 209 



UTAH. 
Part X. 



Acknowledgments 322 

Answer — Time Allowed 307 

Appeals 315 

Arrest in Civil Actions 309 

Attachments 308 

Bankruptcy 326 

Chattel Mortgages 325 

Commencement of Suits 307 

Corporations 324 

Courts 305 

Courts— Place of Holding 306 

Courts— Terms of 306 

Courts — Their Jurisdiction 305 

Deceased Persons — Estates of 317 

Depositions 319 

Estates of Deceased Persons 317 

Examination of Judgment Debtor 313 

Executions 310 

Executions — Proceedings in Aid of 313 

Exemptions 310 

Homesteads. ■ 318 

Insolvency 326 

Interest and Usury 326 

Judgments 310 

Judgment Liens 210 

Judicial Records — How Proved 321 

Jurisdiction of Courts 305 

Liens of Judgment 310 

Limitation of Actions 307 



INDEX. 383 

Page. 

Married Women 324 

Mortgages of Personal Property 325 

Partnerships 323 

Partners — How may be Sued, etc 323 

Partners — Liability of Private Property for Firm Debts 323 

Partners — Assignment and Effect 323 

Proceedings in Aid of Executions 313 

Redemption , 312 

Sale— Under Execution 310 

Security for Costs ' 314 

Terms of Courts 306 

Time Allowed to Plead or Answer 307 

Usury 326 



WASHINGTON TEEEITOEY. 
Part XL 



Acknowledgments 347 

Answer — Time Allowed 330 

Appeals and Writs of Error 342 

Arrest in Civil Actions 335 

Attachments 333 

Bankruptcy 352 

Chattel Mortgages ■. 350 

Commencement of Suits • 330 

Corporations 350 

Courts 327 

Courts— Terms of 329 

Courts— Their Jurisdiction 327 

Courts— Where Held 329 

Deceased Persons — Estates of 343 

Depositions 344 

Estates of Deceased Persons 343 

Examination of Judgment Debtor 341 

Executions 338 

Exemptions from Execution 338 

Homesteads 344 

Insolvency 352 

Interest. 351 



384 INDEX. 

Page. 

Judgments 337 

Judgment Liens 337 

Judicial Records of other States — How Proved 346 

Jurisdiction of Courts 327 

Liens of Judgments 337 

Limitation of Actions 332 

Limited Partnerships 348 

Married Women 349 

Mortgages of Personal Property 350 

Partnerships — Limited 348 

Place of Trial— Civil Action 331 

Proceedings Supplementary to Execution ; 341 

Redemption 340 

Sale — Under Execution 340 

Security for Costs 342 

Sole Traders 349 

Terms of Courts 329 

Time Allowed to Answer 330 

Trial— Place of 331 

Writs of Error 342 



WYOMING. 
Part VII. 



Acknowledgments 262 

Answer — Time Allowed 249 

Appeals 256 

Arrest in Civil Actions 252 

Assignments 267 

Attachments 251 

Chattel Mortgages 265 

Commencement of Actions 249 

Courts 247 

Courts— Terms of and Where Held 248 

Courts — Their Jurisdiction 247 

Deceased Persons — Estates of 257 

Deposition 261 

Descent and Distribution of Property 257 

Estates of Deceased Persons 257 



INDEX. 385 

Page. 

Examination of Judgment Debtor 255 

Executions 254 

Exemptions from Execution 254 

Interest 266 

Judgment Liens 253 

Judicial Records 262 

Jurisdiction of Courts 247 

Liens of Judgments 253 

Limitations of Actions 250 

Limited Partnerships 264 

Married Women 265 

Mortgages of Personal Property : 265 

Partnerships — Limited 264 

Place of Trial of Civil Actions 249 

Proceedings in Aid of Executions 255 

Redemption '. 254 

Sale under Execution 254 

Security for Costs 256 

Terms of Courts 248 

Time to Answer 249 

Trial— Place of ■ 249 

Usury 266 



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